Criminalization
Encyclopedia
Criminalization or criminalisation, in criminology
, is "the process by which behaviors and individuals are transformed into crime
and criminals". Previously legal acts may be transformed into crimes by legislation
or judicial decision. However, there is usually a formal presumption in the rules of statutory interpretation
against the retrospective application of laws
and only the use of express words by the legislature
may rebut this presumption. The power of judges to make new law and retrospectively criminalise behaviour is also discouraged. In a less overt way, where laws have not been strictly enforced, the acts prohibited by those laws may also undergo de facto criminalisation through more effective or committed legal enforcement.
and criminology
has become problematic. The concern is that, within the dialectic
of Right Realism
and Left Realism
, a focus on the victim promotes rights selectively for certain victims, and advocates the assumption that some victim rights are more important than competing rights or values in society. For example, an Islamic feminist
might seek consistency of treatment for women as victims and, therefore, demand the decriminalization of abortion, adultery, and seduction (Zina is a Hudud
offense in sharia law
), and the criminalization of domestic violence
and sexual harassment
.
In formal academically published theory, the real ruling class of a society reaches a temporary view on whether certain acts or behavior are harmful or criminal. Historically this one theory will be modified by scientific, medical evidence, by political change, and the criminal justice system may or may not treat those matters as crimes.
Conversely, when local politics determines that it is no longer a a crime, they may be decriminalized. For example, Recommendation No. R (95) 12 adopted by the Committee of Ministers of the Council of Europe
on the management of criminal justice, advocates that crime policies such as decriminalization, depenalisation or diversion, and mediation should be adopted wherever possible. But the law and order debate between right and left politicians is often superficial and unscientific, formulating policies based on their appeal to an uniformed electorate rather than properly conducted research.
principle, that of the minimum criminalization. Under this principle, the general harm principle fails to consider the possibility of other sanctions and the effectiveness of criminalization as a chosen option. Those other sanctions include civil courts, laws of tort
and regulation
. Having criminal remedies in place is seen as a "last resort" since such actions often infringe personal liberties – incarceration
, for example, prevents the freedom of movement. In this sense, law making that places a greater emphasis on human rights
. Most crimes of direct actions (murder
, rape
, assault
, for example) are generally not affected by such a stance, but it does require greater justification in less clear cases.
The policy of "social defense" can be seen as an opposing view. It argues that criminalization is used against "any form of activity which threatens good order or is thought reprehensible". The minimization principle may unwittingly prevent the adaptation of the law to new situations. In general, worldwide policy makers have created a myriad of smaller offences, in contradiction to the minimization principle and more in keeping with the social defence.
People experience a range of physical and social injuries in different contexts which will vary according to the level of economic and political development of their country. Some will be injured out of poverty
and malnutrition
, others by violence
which might stem from a major conflict such as war
or from the personal violence in a robbery
. The environment
may be damaged by pollution
, there may be hazards at work. Many of these sources of injury will be ignored while the state may delegate powers of control to a number of different agencies within an international framework where supranational agencies and human rights
organisations may offer assistance in responding to the causes of those injuries.
believed that moral behaviour was essential in maintaining the cohesion of a state, and so lawmakers should be entitled to criminalise immoral behaviour. However, opponents of this approach typically suggest use of a harm principle only and that immorality is not a reason in itself since outcomes of such activity can be used to come to a conclusion alone. Devlin's argument uses the disgust of the general public as a definition of morality; however, issues involving prejudice
have shown this to be flawed and opponents push for a much stricter definition if this approach is to be used. Devlin suggested a jury to give an indication of immoral behaviour. As well as prejudice, views were likely to vary widely on issues such as homosexuality
, contraception
and other matters, particularly those influenced by religion. Agreement would be hard to find. Other opposition has been from liberal groups which favour approaches which maximise individual rights. A moral basis for criminalization would be paternalistic, thereby contrasting with personal autonomy. The European Convention of Human Rights, in the most part supporting individual rights from government interferences, still includes a provision for interference "for the protection of health and morals". such as legally requiring seat belt
s to be worn (in some jurisdictions) are hard to justify if an individualistic approach is taken, since, if public health provision is ignored, little harm is caused to others.
Joseph Raz
argues that the state cannot and should not enforce morality; rather, any attempt to limit individual autonomy should be done only to limit harm. Certain moral ideals may be justifiable if they extend autonomy. If the immoral conduct of others impinges on someone else's autonomy, then that can be legislated against. There are some groups for whom the principle of autonomy is weakened: those under an age of majority
and those people who are impaired by, for example, a mental disorder. In general, these people are protected from activities with significant consequences, if they are not in a position to make reasoned decisions themselves. This may involve the criminalization of under-age drinking, smoking
, gambling
and sexual activities. Such criminalization is rarely challenged.
In British law, a distinction between public and private acts was made in the Wolfenden report
, which examined sexual activities (particularly homosexuality and prostitution
). Some acts would effectively become legal within private settings, but illegal in public settings. The justification for this was the concept of shock or offensive to the public. Such a line was favoured by Joel Feinberg
, who argued that it was a good reason in support of legislation if it effectively prevented "serious offence" to persons other than the actor. Philosophers such as Feinberg struggle to quantify the ideology behind the illegality of acts which in another setting would be acceptable (that acts themselves not causing harm, for example), for example nudity
. Since such acts publicly are made illegal on the basis of shock, then whether to criminalise depends on a shifting body of public opinion, which varies from place to place and from time to time. The concept of "insult" rather than "offensive" may be more specific.
does not often find an actor liable for omission – failing to do something required by the law. Where this has applied it has typically been in industrial regulation
, in matters of social security
or some personal regulated activity such as driving (for example, in the case of a hit and run
). These form conditions placed upon operating in a particular manner and are thus understood in that context. There are few general duties in common law juristictions, although these do include the responsibility of a parent to safeguard their children, to a landowner to prevent offences being carried out there, and to someone creating a dangerous situation to attempt to limit that danger. Proponents of limited liability for omissions suggest that the wording for such a law would be vague, possibly involving "reasonable" care or action, and so would be hard to enforce. This would give prosecutors wide discretion, which may be opposed to justice. Morally, omission is viewed by many as a far lesser problem than act; compared to murder, allowing someone to die is seen as much smaller. A requirement to spend one's time and energy helping others would seem to contradict the autonomy many other laws aim to provide the individual with.
Opponents point out these arguments fail to consider the harm that such omissions may cause, in contradiction to the harm principle many legal systems start out with. Life and physical integrity are often the highest priorities of a legal system. Difficulties in definition are in common with many other areas, theorists such as Feinburg point out. A non-burdensome rescue is likely to be less valuable than freedom of action. Limited liability is considered as article 223 of the French Penal Code, which criminalises: "(1) a person who voluntarily neglects to prevent a serious crime of offense against that person, if that crime could be prevented without personal risk or risk to others; and (2) a person who voluntarily neglects to give, to a person in peril, assistance which could be rendered without personal risk or risk to others." This is common with several other European jurisdictions. Whilst open to the criticisms of vagueness and prosecutor discretion, it has not been seen as overly oppressive.
reality to crime. The criminal justice system responds to a substantial number of events that do not produce significant hardship to individual citizens. Moreover, events which do cause serious injuries and perhaps should be dealt with as crimes, e.g. situations of corporate manslaughter
, are either ignored or dealt with as civil matters.
The criminalisation process defines and classifies behaviour. It broadcasts the laws so that no-one may have the excuse
of ignorance
, and disposes of those who will not obey. There are now more criminal laws and they are penetrating deeper into the social structures of modern societies. Crime control has become an industry, yet it remains ineffective in providing protection to all its citizens from harm. Such as it is, the process is made up of three components:
.) However, some classical theorists, such as Aristotle, in his Politics and Metaphysics, and to a lesser degree in his Topics, suggest that the distinction is at least problematic. One need consider no further than the claim that man is a political animal to see this is so.
As a political animal, man has come to see himself as possessed of rights, whether these are the Rights of Englishmen
of old, or the universal human rights advocated vigorously toward establishment today through the matrix of commercialism. At least in the today dominant American model, deprivation of right amounts to injury (consider especially Justice Stevens dissenting opinion in Castle Rock v. Gonzales
), and injury—so goes the prevailing theory—amounts, when coupled with requisite intent, in most cases, to crime, when it does not admit of civil redress. Thus, again in simple terms, and to the extent that human beings are indeed political beings, crime does seem to have an ontological basis. (For one approach to the question of criminal ontology, see "Understanding Crime and Social Control in Market Economies: Looking Back and Moving Forward" by Robert Bohm in Jeffrey Ian Ross, ed. Cutting the Edge: Current Perspectives in Radical/Critical Criminology and Criminal Justice. Westport, Conn: Praeger, 1998.) This, further, seems to hold if ontology itself is divided into political and trans- or supra- or meta- political ontology—i.e., what once was the realm of Christian theology. Of course, it does not matter whether that theology is Christian or belonging to some other apolitical belief. The point is that one may, with some justice, argue persuasively that being is divided. This need not, however, force the question of meta-political crimes. Our purposes here, in this article, are limited to the political. For the question in general see Ontology
.
Baker argues that only objective harms and other objective bad consequences (or actions in the case of inchoate and endangerment offenses) are prima facie criminalizable. By other bad consequences Baker means privacy violations and conduct that does not necessarily result in tangible harm, but does result in unwanted consequences. Baker argues that the privacy violations that result from being forced to receive unwanted obscene information in public places (exhibitionism) would amount to a sufficient bad consequence for the purposes of invoking the criminal law, but argues that proportionate punishment means that such conduct should only be punished with fines rather than jail terms.
Criminology
Criminology is the scientific study of the nature, extent, causes, and control of criminal behavior in both the individual and in society...
, is "the process by which behaviors and individuals are transformed into crime
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
and criminals". Previously legal acts may be transformed into crimes by legislation
Legislation
Legislation is law which has been promulgated by a legislature or other governing body, or the process of making it...
or judicial decision. However, there is usually a formal presumption in the rules of statutory interpretation
Statutory interpretation
Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is always necessary when a case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning. But in many cases, there is some ambiguity or...
against the retrospective application of laws
Ex post facto law
An ex post facto law or retroactive law is a law that retroactively changes the legal consequences of actions committed or relationships that existed prior to the enactment of the law...
and only the use of express words by the legislature
Legislature
A legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...
may rebut this presumption. The power of judges to make new law and retrospectively criminalise behaviour is also discouraged. In a less overt way, where laws have not been strictly enforced, the acts prohibited by those laws may also undergo de facto criminalisation through more effective or committed legal enforcement.
The problems
There has been some uncertainty as to the nature and extent of the contribution to be made by the victims of crime. But, as Garkawe (2001) indicates, the relationship between victimologyVictimology
Victimology is the scientific study of victimization, including the relationships between victims and offenders, the interactions between victims and the criminal justice system — that is, the police and courts, and corrections officials — and the connections between victims and other social groups...
and criminology
Criminology
Criminology is the scientific study of the nature, extent, causes, and control of criminal behavior in both the individual and in society...
has become problematic. The concern is that, within the dialectic
Dialectic
Dialectic is a method of argument for resolving disagreement that has been central to Indic and European philosophy since antiquity. The word dialectic originated in Ancient Greece, and was made popular by Plato in the Socratic dialogues...
of Right Realism
Right Realism
In criminology, Right Realism is the ideological polar opposite of Left Realism...
and Left Realism
Left realism
Left Realist Criminology emerged out of Critical Criminology as a reaction against what was perceived to be the Left's failure to take a practical interest in everyday crime, leaving it to the Right Realists to monopolize the political agenda on law and order...
, a focus on the victim promotes rights selectively for certain victims, and advocates the assumption that some victim rights are more important than competing rights or values in society. For example, an Islamic feminist
Feminism
Feminism is a collection of movements aimed at defining, establishing, and defending equal political, economic, and social rights and equal opportunities for women. Its concepts overlap with those of women's rights...
might seek consistency of treatment for women as victims and, therefore, demand the decriminalization of abortion, adultery, and seduction (Zina is a Hudud
Hudud
Hudud is the word often used in Islamic literature for the bounds of acceptable behaviour and the punishments for serious crimes...
offense in sharia law
Sharia
Sharia law, is the moral code and religious law of Islam. Sharia is derived from two primary sources of Islamic law: the precepts set forth in the Quran, and the example set by the Islamic prophet Muhammad in the Sunnah. Fiqh jurisprudence interprets and extends the application of sharia to...
), and the criminalization of domestic violence
Domestic violence
Domestic violence, also known as domestic abuse, spousal abuse, battering, family violence, and intimate partner violence , is broadly defined as a pattern of abusive behaviors by one or both partners in an intimate relationship such as marriage, dating, family, or cohabitation...
and sexual harassment
Sexual harassment
Sexual harassment, is intimidation, bullying or coercion of a sexual nature, or the unwelcome or inappropriate promise of rewards in exchange for sexual favors. In some contexts or circumstances, sexual harassment is illegal. It includes a range of behavior from seemingly mild transgressions and...
.
In formal academically published theory, the real ruling class of a society reaches a temporary view on whether certain acts or behavior are harmful or criminal. Historically this one theory will be modified by scientific, medical evidence, by political change, and the criminal justice system may or may not treat those matters as crimes.
Conversely, when local politics determines that it is no longer a a crime, they may be decriminalized. For example, Recommendation No. R (95) 12 adopted by the Committee of Ministers of the Council of Europe
Council of Europe
The Council of Europe is an international organisation promoting co-operation between all countries of Europe in the areas of legal standards, human rights, democratic development, the rule of law and cultural co-operation...
on the management of criminal justice, advocates that crime policies such as decriminalization, depenalisation or diversion, and mediation should be adopted wherever possible. But the law and order debate between right and left politicians is often superficial and unscientific, formulating policies based on their appeal to an uniformed electorate rather than properly conducted research.
Principles
Several principles may underpin decisions about criminalization. These include the de minimisDe minimis
De minimis is a Latin expression meaning about minimal things, normally in the locutions de minimis non curat praetor or de minimis non curat lex .In risk assessment it refers to a level of risk that is too small to be concerned with...
principle, that of the minimum criminalization. Under this principle, the general harm principle fails to consider the possibility of other sanctions and the effectiveness of criminalization as a chosen option. Those other sanctions include civil courts, laws of tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
and regulation
Regulation
Regulation is administrative legislation that constitutes or constrains rights and allocates responsibilities. It can be distinguished from primary legislation on the one hand and judge-made law on the other...
. Having criminal remedies in place is seen as a "last resort" since such actions often infringe personal liberties – incarceration
Incarceration
Incarceration is the detention of a person in prison, typically as punishment for a crime .People are most commonly incarcerated upon suspicion or conviction of committing a crime, and different jurisdictions have differing laws governing the function of incarceration within a larger system of...
, for example, prevents the freedom of movement. In this sense, law making that places a greater emphasis on human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
. Most crimes of direct actions (murder
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
, rape
Rape
Rape is a type of sexual assault usually involving sexual intercourse, which is initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, coercion, abuse of authority or with a person who is incapable of valid consent. The...
, assault
Assault
In law, assault is a crime causing a victim to fear violence. The term is often confused with battery, which involves physical contact. The specific meaning of assault varies between countries, but can refer to an act that causes another to apprehend immediate and personal violence, or in the more...
, for example) are generally not affected by such a stance, but it does require greater justification in less clear cases.
The policy of "social defense" can be seen as an opposing view. It argues that criminalization is used against "any form of activity which threatens good order or is thought reprehensible". The minimization principle may unwittingly prevent the adaptation of the law to new situations. In general, worldwide policy makers have created a myriad of smaller offences, in contradiction to the minimization principle and more in keeping with the social defence.
Harm
Leading criminal law philosophers, such as Dennis Baker and Joel Feinberg have argued that conduct should only be criminalized when it is fair to do so. In particular, such theorists assert that objective reasons are needed to demonstrate that it is fair to criminalize conduct in any given case. The commonly cited objective justification for invoking the criminal law is harm to others, but it cannot deal with all situations. For example, people are not necessarily harmed by public nudity. Feinberg suggests that offence to others also provides an objective reason for invoking the criminal law, but it clearly does not as offence is determined according to conventional morality.People experience a range of physical and social injuries in different contexts which will vary according to the level of economic and political development of their country. Some will be injured out of poverty
Poverty
Poverty is the lack of a certain amount of material possessions or money. Absolute poverty or destitution is inability to afford basic human needs, which commonly includes clean and fresh water, nutrition, health care, education, clothing and shelter. About 1.7 billion people are estimated to live...
and malnutrition
Malnutrition
Malnutrition is the condition that results from taking an unbalanced diet in which certain nutrients are lacking, in excess , or in the wrong proportions....
, others by violence
Violence
Violence is the use of physical force to apply a state to others contrary to their wishes. violence, while often a stand-alone issue, is often the culmination of other kinds of conflict, e.g...
which might stem from a major conflict such as war
War
War is a state of organized, armed, and often prolonged conflict carried on between states, nations, or other parties typified by extreme aggression, social disruption, and usually high mortality. War should be understood as an actual, intentional and widespread armed conflict between political...
or from the personal violence in a robbery
Robbery
Robbery is the crime of taking or attempting to take something of value by force or threat of force or by putting the victim in fear. At common law, robbery is defined as taking the property of another, with the intent to permanently deprive the person of that property, by means of force or fear....
. The environment
Natural environment
The natural environment encompasses all living and non-living things occurring naturally on Earth or some region thereof. It is an environment that encompasses the interaction of all living species....
may be damaged by pollution
Pollution
Pollution is the introduction of contaminants into a natural environment that causes instability, disorder, harm or discomfort to the ecosystem i.e. physical systems or living organisms. Pollution can take the form of chemical substances or energy, such as noise, heat or light...
, there may be hazards at work. Many of these sources of injury will be ignored while the state may delegate powers of control to a number of different agencies within an international framework where supranational agencies and human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
organisations may offer assistance in responding to the causes of those injuries.
Moral approaches and autonomy
The extent to which behaviours considered morally wrong in a given jurisdiction should be criminalized is controversial. Lying or breaking promises are not in general criminalised, for example. Patrick DevlinPatrick Devlin, Baron Devlin
Patrick Arthur Devlin, Baron Devlin, PC was a British lawyer, judge and jurist. He wrote a report on Britain's involvement in Nyasaland in 1959...
believed that moral behaviour was essential in maintaining the cohesion of a state, and so lawmakers should be entitled to criminalise immoral behaviour. However, opponents of this approach typically suggest use of a harm principle only and that immorality is not a reason in itself since outcomes of such activity can be used to come to a conclusion alone. Devlin's argument uses the disgust of the general public as a definition of morality; however, issues involving prejudice
Prejudice
Prejudice is making a judgment or assumption about someone or something before having enough knowledge to be able to do so with guaranteed accuracy, or "judging a book by its cover"...
have shown this to be flawed and opponents push for a much stricter definition if this approach is to be used. Devlin suggested a jury to give an indication of immoral behaviour. As well as prejudice, views were likely to vary widely on issues such as homosexuality
Homosexuality
Homosexuality is romantic or sexual attraction or behavior between members of the same sex or gender. As a sexual orientation, homosexuality refers to "an enduring pattern of or disposition to experience sexual, affectional, or romantic attractions" primarily or exclusively to people of the same...
, contraception
Contraception
Contraception is the prevention of the fusion of gametes during or after sexual activity. The term contraception is a contraction of contra, which means against, and the word conception, meaning fertilization...
and other matters, particularly those influenced by religion. Agreement would be hard to find. Other opposition has been from liberal groups which favour approaches which maximise individual rights. A moral basis for criminalization would be paternalistic, thereby contrasting with personal autonomy. The European Convention of Human Rights, in the most part supporting individual rights from government interferences, still includes a provision for interference "for the protection of health and morals". such as legally requiring seat belt
Seat belt
A seat belt or seatbelt, sometimes called a safety belt, is a safety harness designed to secure the occupant of a vehicle against harmful movement that may result from a collision or a sudden stop...
s to be worn (in some jurisdictions) are hard to justify if an individualistic approach is taken, since, if public health provision is ignored, little harm is caused to others.
Joseph Raz
Joseph Raz
Joseph Raz is a legal, moral and political philosopher. He is one of the most prominent advocates of legal positivism. He has spent most of his career as professor of philosophy of law and a fellow of Balliol College, Oxford, and simultaneously as professor of law at Columbia University Law...
argues that the state cannot and should not enforce morality; rather, any attempt to limit individual autonomy should be done only to limit harm. Certain moral ideals may be justifiable if they extend autonomy. If the immoral conduct of others impinges on someone else's autonomy, then that can be legislated against. There are some groups for whom the principle of autonomy is weakened: those under an age of majority
Age of majority
The age of majority is the threshold of adulthood as it is conceptualized in law. It is the chronological moment when minors cease to legally be considered children and assume control over their persons, actions, and decisions, thereby terminating the legal control and legal responsibilities of...
and those people who are impaired by, for example, a mental disorder. In general, these people are protected from activities with significant consequences, if they are not in a position to make reasoned decisions themselves. This may involve the criminalization of under-age drinking, smoking
Smoking
Smoking is a practice in which a substance, most commonly tobacco or cannabis, is burned and the smoke is tasted or inhaled. This is primarily practised as a route of administration for recreational drug use, as combustion releases the active substances in drugs such as nicotine and makes them...
, gambling
Gambling
Gambling is the wagering of money or something of material value on an event with an uncertain outcome with the primary intent of winning additional money and/or material goods...
and sexual activities. Such criminalization is rarely challenged.
In British law, a distinction between public and private acts was made in the Wolfenden report
Wolfenden report
The Report of the Departmental Committee on Homosexual Offences and Prostitution was published in Britain on 4 September 1957 after a succession of well-known men, including Lord Montagu, Michael Pitt-Rivers and Peter Wildeblood, were convicted of homosexual offences.-The committee:The...
, which examined sexual activities (particularly homosexuality and prostitution
Prostitution
Prostitution is the act or practice of providing sexual services to another person in return for payment. The person who receives payment for sexual services is called a prostitute and the person who receives such services is known by a multitude of terms, including a "john". Prostitution is one of...
). Some acts would effectively become legal within private settings, but illegal in public settings. The justification for this was the concept of shock or offensive to the public. Such a line was favoured by Joel Feinberg
Joel Feinberg
Joel Feinberg was an American political and social philosopher. He is known for his work in the fields of ethics, action theory, philosophy of law, and political philosophy as well as individual rights and the authority of the state...
, who argued that it was a good reason in support of legislation if it effectively prevented "serious offence" to persons other than the actor. Philosophers such as Feinberg struggle to quantify the ideology behind the illegality of acts which in another setting would be acceptable (that acts themselves not causing harm, for example), for example nudity
Nudity
Nudity is the state of wearing no clothing. The wearing of clothing is exclusively a human characteristic. The amount of clothing worn depends on functional considerations and social considerations...
. Since such acts publicly are made illegal on the basis of shock, then whether to criminalise depends on a shifting body of public opinion, which varies from place to place and from time to time. The concept of "insult" rather than "offensive" may be more specific.
Omission
Common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
does not often find an actor liable for omission – failing to do something required by the law. Where this has applied it has typically been in industrial regulation
Regulation
Regulation is administrative legislation that constitutes or constrains rights and allocates responsibilities. It can be distinguished from primary legislation on the one hand and judge-made law on the other...
, in matters of social security
Social security
Social security is primarily a social insurance program providing social protection or protection against socially recognized conditions, including poverty, old age, disability, unemployment and others. Social security may refer to:...
or some personal regulated activity such as driving (for example, in the case of a hit and run
Hit and run (vehicular)
Hit-and-run is the act of causing a traffic accident , and failing to stop and identify oneself afterwards...
). These form conditions placed upon operating in a particular manner and are thus understood in that context. There are few general duties in common law juristictions, although these do include the responsibility of a parent to safeguard their children, to a landowner to prevent offences being carried out there, and to someone creating a dangerous situation to attempt to limit that danger. Proponents of limited liability for omissions suggest that the wording for such a law would be vague, possibly involving "reasonable" care or action, and so would be hard to enforce. This would give prosecutors wide discretion, which may be opposed to justice. Morally, omission is viewed by many as a far lesser problem than act; compared to murder, allowing someone to die is seen as much smaller. A requirement to spend one's time and energy helping others would seem to contradict the autonomy many other laws aim to provide the individual with.
Opponents point out these arguments fail to consider the harm that such omissions may cause, in contradiction to the harm principle many legal systems start out with. Life and physical integrity are often the highest priorities of a legal system. Difficulties in definition are in common with many other areas, theorists such as Feinburg point out. A non-burdensome rescue is likely to be less valuable than freedom of action. Limited liability is considered as article 223 of the French Penal Code, which criminalises: "(1) a person who voluntarily neglects to prevent a serious crime of offense against that person, if that crime could be prevented without personal risk or risk to others; and (2) a person who voluntarily neglects to give, to a person in peril, assistance which could be rendered without personal risk or risk to others." This is common with several other European jurisdictions. Whilst open to the criticisms of vagueness and prosecutor discretion, it has not been seen as overly oppressive.
Procedure
When a state debates whether to respond to a source of injury by criminalising the behaviour that produces it, there are no pre-set criteria to apply in formulating social policy. There is no ontologicalOntology
Ontology is the philosophical study of the nature of being, existence or reality as such, as well as the basic categories of being and their relations...
reality to crime. The criminal justice system responds to a substantial number of events that do not produce significant hardship to individual citizens. Moreover, events which do cause serious injuries and perhaps should be dealt with as crimes, e.g. situations of corporate manslaughter
Corporate manslaughter
Corporate manslaughter is a criminal offence in English law, being an act of homicide committed by a company or organisation. In general, in English criminal law, a juristic person is in the same position as a natural person, and may be convicted for committing many offences...
, are either ignored or dealt with as civil matters.
The criminalisation process defines and classifies behaviour. It broadcasts the laws so that no-one may have the excuse
Excuse
In jurisprudence, an excuse or justification is a defense to criminal charges that is distinct from an exculpation. In this context, "to excuse" means to grant or obtain an exemption for a group of persons sharing a common characteristic from a potential liability. "To justify" as in justifiable...
of ignorance
Ignorantia juris non excusat
Ignorantia juris non excusat or ignorantia legis neminem excusat is a legal principle holding that a person who is unaware of a law may not escape liability for violating that law merely because he or she was unaware of its content...
, and disposes of those who will not obey. There are now more criminal laws and they are penetrating deeper into the social structures of modern societies. Crime control has become an industry, yet it remains ineffective in providing protection to all its citizens from harm. Such as it is, the process is made up of three components:
- Creation of a social order. This is both a socio-economic process, a "...fundamental ordering of social relations so that those things necessary for social survival can be produced and distributed in some predictable fashion" and an ideological process so that there can be a "...development of values, beliefs, and ideas related to the concrete tasks of production and distribution."(p. 6). Thus, society must develop the apparatus of law creation, law enforcement and punishmentPunishmentPunishment is the authoritative imposition of something negative or unpleasant on a person or animal in response to behavior deemed wrong by an individual or group....
and the system must be acceptable to the majority of those who live in the community. If the laws do not match the general moresMoresMores, in sociology, are any given society's particular norms, virtues, or values. The word mores is a plurale tantum term borrowed from Latin, which has been used in the English language since the 1890s....
, their enforcement will be a source of friction and disharmony. Conformity to the social order must, for the most part, be self-enforced. - For the times when self-enforcement fails, society must create a legal order. This part of the process sees the centralisation of power within the institutions of the political state. Some states justified the criminalisation process as demonstrating their concerns about safety and security, the policy of control, policing, criminal justice, and penal practice. The modern state is decentralisingDécentralisationDécentralisation is a french word for both a policy concept in French politics from 1968-1990, and a term employed to describe the results of observations of the evolution of spatial economic and institutional organization of France....
and privatising its functions. This is changing the character and content of the remaining institutions of the state which must now work co-operatively with other for-profit agencies. - The political order must realign so that the remaining political entities such as legislatureLegislatureA legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...
s and judgeJudgeA judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
s set agreed targets for state control and then produce actual outputs of the legal order, i.e. of people defined as criminal and processed through that system.
Ontological basis of crime
Put in the most simple terms, ontology deals with or establishes the clear grounds for being. (Heidegger, Martin, Being and Time, introduction, referencing Plato's Parmenides.) In some of the traditional schools, such as those of the post-1688 English or Americans (many of the writings of the American Founding Fathers, but especially The Federalist) and their Dutch predecessors (see Kossmann, E. H. Political Thought in the Dutch Republic, 2004) ontology proper is deemed beyond the scope of legal thought, in accord with the modern distinction between society and state (which some consider based in the distinction the Romans made between themselves and their Italian allies, the socii, but not given the theoretical articulation we recognize today until emphasized by Thomas Hobbes' Leviathan. See stateState (polity)
A state is an organized political community, living under a government. States may be sovereign and may enjoy a monopoly on the legal initiation of force and are not dependent on, or subject to any other power or state. Many states are federated states which participate in a federal union...
.) However, some classical theorists, such as Aristotle, in his Politics and Metaphysics, and to a lesser degree in his Topics, suggest that the distinction is at least problematic. One need consider no further than the claim that man is a political animal to see this is so.
As a political animal, man has come to see himself as possessed of rights, whether these are the Rights of Englishmen
Rights of Englishmen
The rights of Englishmen are the perceived traditional rights of British subjects. The notion refers to various constitutional documents that were created throughout various stages of English history, such as Magna Carta, the Declaration of Right , and others...
of old, or the universal human rights advocated vigorously toward establishment today through the matrix of commercialism. At least in the today dominant American model, deprivation of right amounts to injury (consider especially Justice Stevens dissenting opinion in Castle Rock v. Gonzales
Castle Rock v. Gonzales
Castle Rock v. Gonzales, 545 U.S. 748 , was a case decided by the Supreme Court of the United States, in which the court ruled, 7-2, that a town and its police department could not be sued under 42 U.S.C...
), and injury—so goes the prevailing theory—amounts, when coupled with requisite intent, in most cases, to crime, when it does not admit of civil redress. Thus, again in simple terms, and to the extent that human beings are indeed political beings, crime does seem to have an ontological basis. (For one approach to the question of criminal ontology, see "Understanding Crime and Social Control in Market Economies: Looking Back and Moving Forward" by Robert Bohm in Jeffrey Ian Ross, ed. Cutting the Edge: Current Perspectives in Radical/Critical Criminology and Criminal Justice. Westport, Conn: Praeger, 1998.) This, further, seems to hold if ontology itself is divided into political and trans- or supra- or meta- political ontology—i.e., what once was the realm of Christian theology. Of course, it does not matter whether that theology is Christian or belonging to some other apolitical belief. The point is that one may, with some justice, argue persuasively that being is divided. This need not, however, force the question of meta-political crimes. Our purposes here, in this article, are limited to the political. For the question in general see Ontology
Ontology
Ontology is the philosophical study of the nature of being, existence or reality as such, as well as the basic categories of being and their relations...
.
Baker argues that only objective harms and other objective bad consequences (or actions in the case of inchoate and endangerment offenses) are prima facie criminalizable. By other bad consequences Baker means privacy violations and conduct that does not necessarily result in tangible harm, but does result in unwanted consequences. Baker argues that the privacy violations that result from being forced to receive unwanted obscene information in public places (exhibitionism) would amount to a sufficient bad consequence for the purposes of invoking the criminal law, but argues that proportionate punishment means that such conduct should only be punished with fines rather than jail terms.
Further reading
- Baker, Dennis J. (2009) "The Moral Limits of Consent as a Defense in the Criminal Law", 12 New Criminal Law Review (2009); Dennis J. Baker (2008) "The Harm Principle vs Kantian Criteria for Ensuring Fair, Principled and Just Criminalisation", 33 Australian Journal of Legal Philosophy 66 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1300351; Dennis J. Baker (2008) "Constitutionalizing the Harm Principle", 27(2) Criminal Justice Ethics 3 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1300356; Dennis J. Baker, ‘The Sense and Nonsense of Criminalizing Transfers of Obscene Materials: Criminalizing Privacy Violations,’ 26 Singapore Law Review 126 (2008)http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1369123; Dennis J. Baker, 'The Moral Limits of Criminalizing Remote Harms 10(3) New Criminal Law Review 370 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1130052
- Dennis J. Baker, The Right Not to be Criminalized: Demarcating Criminal Law’s Authority, (London: Ashgate, 2011 (ISBN 978-1-4094-2765-0.)
- Currie, E. (1991) "The Politics of Crime: the American Experience" in The Politics of Crime Control. Stenson, Kevin. & Cowell, David. (eds.) London: Sage. ISBN 0-8039-8342-5
- Elias, Robert. (1993). Victims Still: The Political Manipulation of Crime Victims. London: Sage. ISBN 0-8039-5052-7
- Elias, Robert. (1994). "Crime Wars Forgotten" in Rethinking Peace. Elias, Robert & Turpin, Jennifer. (eds.). Boulder, CO: Lynne Rienner Publishers, pp. 123–31. ISBN 1-55587-488-6
- Feinberg, Joel, Harm to Others: The Moral Limits of the Criminal Law, OUP, New York: 1984.
- Fattah, Ezzat, A. (1989). "Victims of Abuse of Power" in The Plight of Crime Victims in Modern Society. New York: Palgrave Macmillan, pp. 29–73. ISBN 0-312-61758-5
- Fattah, Ezzat, A. (1992). "The Need for a Critical Victimology" in Towards A Critical Victimology. Ezzat A. Fattah (ed.). New York: Palgrave Macmillan, pp. 14–23. ISBN 0-312-07551-0
- Garkawe, Sam. (2001). "Modern Victimology: Its Importance, Scope and Relationship with Criminology". Acta Criminologica. Vol 14(2), pp. 90–99
- Harding, R. (1994). Victimisation, Moral Panics, and the Distortion of Criminal Justice Policy". Current Issues in Criminal Justice, Vol. 6, 27-42
- Michalowski, R. J. (1985). Order, Law and Crime: An Introduction to Criminology. New York: Random House.
- Jackson, J.Janine JacksonJanine Jackson is the program director of FAIR , and the co-host and co-producer of FAIR's syndicated radio show CounterSpin --a weekly program of media criticism airing on more than 150 stations around the country.Jackson graduated with a B.A. from Sarah Lawrence College and has an M.A...
& Naureckas, J.Jim NaureckasJim Naureckas is the editor of Extra!, the magazine of FAIR .He graduated from Stanford University in 1985 with a bachelor's degree in political science...
(1994). "Crime Contradictions: US News Illustrates Flaws in Crime Coverage". EXTRA! May/June, pp. 10–14. - Leiper, S. (1994). "Crime and Propaganda". Propaganda Review, Vol. 11, pp. 44–6.
- Walklate, Sandra. (1989). Victimology: The Victim and the Criminal Justice Process. London: Routledge. ISBN 0-04-445160-1
- Walklate, Sandra. (2003). Understanding Criminology: Current Theoretical Debates (Crime & Justice S.). Oxford: Oxford University Press. ISBN 0-335-20951-3