What is a Crime?
Origin of Crime
The theories of Locke, Hobbes and Rousseau describe how people gave up their right to make the state authority for managing and administrating law and welfare in the society. The important task of such a state was the prevention of crime and punishing the offenders. But how to define a crime or a criminal offence?
There have been various authors who have tried to define the term ‘crime’ in order to constitute a static definition for
the same but no one as far has been satisfactorily able to accomplish it.
According to Russell, “Criminal offences are basically the creation of the criminal policy adopted from time-to-time by those sections of the community who are powerful or astute enough to safeguard their own security and comfort by causing the sovereign power in the state to repress conduct which they feel may endanger their position”[1]
Glanville Williams, Britain’s foremost scholar of criminal law, admitted
that it is impossible to have a workable content-based definition of crime and
eventually said that only a formal definition of crime can be sustainable in
the law,
“crime is an act capable of being followed by criminal proceedings having a criminal outcome.”[2]
JW Cecil Turner, the editor of Kenny’s Outlines of Criminal
Law uses a similar tone to opine that
“The definition of crime has always been regarded as a matter of great difficulty” and “the truth appears to be that no satisfactory definition has yet been achieved and that it is, indeed, not possible to discover a legal definition of crime.”[3]
Professor Wechsler stated that the purpose of criminal law was to administer this task given to the state of preventing crime in the society. Criminal law is the tool that expresses a formal and social denunciation of forbidden acts sanctioned by the state to prevent crime.
The ultimate difficulty in defining crime arises due to its dynamic nature which is an outcome of equally changing social beliefs, culture and values. The change in criminal and penal policy is due to the ever-changing political and social forces and factors, cumulatively and individually, of a state. It is the values and interests of the society that need protection that is gained by imposing penal sanctions.
Another theorist W Friedman accepted this view given by Wechsler and observed that this statement poses various questions while understanding the concept of crime. The three major questions are ascertained to be:
- Which acts/conduct would be “forbidden”?
- What kind of “formal” or social condemnation would be appropriate to prevent above-forbidden conduct?
- What kind of sanctions would be considered best to prevent these outlawed conducts of persons?
To evaluate the kinds of conduct that must be forbidden, it is necessary to recall the purpose of criminal law. Nigel Walker[4]described certain conditions which should be fulfilled by criminal law, some of which are:
- Protection of state and its people against international or national violence or sexual cruelty,
- Safeguarding minority interests and vulnerable groups and individuals,
- Unnatural acts,
- Abuse of persons and property.
- Prevention of conduct which may affect others as a result of shock, etc.
It is to be ascertained that human conduct that comes within the ambit of ‘the purpose of criminal law’, in accordance with public and state policies shall be labelled as ‘crime’.
Definition of
Crime
Stephen
observed that a crime is a violation of a right considered in reference to the
evil tendency of such violation as regards the community at large.[5]
According to Salmond, “A wrong is
simply a wrong Act - an act contrary to the rule of right and Justice. A
synonym of it is injury, in its true and primary sense of injuria (that
which is contrary to jus), though by a modern preservation of meaning this time
has acquired the secondary sense of harm or damage whether rightful or wrongful
and whether inflicted by human agency or not.”[6]
Blackstone
defines crime, “an act committed or omitted in violation of a public law
either forbidding or commanding it.”[7]
However, according to Pollock
the meaning of wrong when analysed with a moralistic approach is contrary to
rights. Moralistic approach prescribes wrongs as actions forbidden by morals and
right action are which is in accordance with morals.
Similarly, in legal approach wrong is
any action proscribed by the law and wrong would be committed if a legal duty
is not abided by. A wrong, in general, can be defined as anything which is
contrary to legal rules and orders which will give rise to liabilities provided
that the duty shall beforehand exist.
Pollock further describes, “There can be no
such thing as a distinct law of wrongs. By the law of wrongs, we can mean only
the law of duties, or some class of duties, considered as exposed to
infraction, and the special rules for awarding redress or punishment which came
into play when infraction has taken place. There is not one Law of rights or duties
and another Law or wrongs.
Nevertheless, there are some kinds of
duties which are more conspicuous in the breach than in the observance. The
natural end of positive duty is performance. A thing has to be done, and when
it is duty done the duty is, as we say, discharged; the man who lawfully bound
is lawfully free. We contemplate performance, not breach. Appointments officers
are made, or ought to be, in the expectation that the persons appointed
will adequately fulfil their official duties."[8]
According to Bentham, Criminal offences
are conducts prohibited by the legislature for either good or bad reasons. When the
question to discover the best possible laws in accordance with the principles
of a utility arises, we list down acts which by reason of some evil the act tends
to produce.
While analysing all the definitions given by various theorists, the foremost
conclusion that can gained is that crime is, in fact, any act or omission of a
conduct for which the law or the state has enforced legal punishment on a person whoever tries to intentionally commits the same.
Some of the important elements to conclude that an act comes under the reasoning of “crime” are majorly:
- “Wrong” should be committed/omitted,
- Wrong committed should impact social interests,
- Right of people should be infringed or affected, and
- It should be forbidden by law.
With respect to other ingredients in the commission of a crime, they shall
be discussed in the next chapter of Satark Shaniwar.
Dynamics of Crime
Professor Kenny, delving into the “difficulty to define crime”, more
eloquently observed that:-
“Any conduct which a sufficiently powerful section of any given
community feels to be destructive of its own interests, as endangering its
safety, stability or comfort, it usually regards as especially heinous and
seeks to repress with corresponding severity;
if possible, it secures that the forces which the sovereign power in
the State can command shall be utilised to prevent the mischief or to punish
anyone who is guilty of it.
Of course, a variety of factors may operate at the same time to
produce this result, and it is rarely possible to identify them clearly: all
that can be said is that an offence may become a crime as a result of the
combined effect of a number of different social forces.
Crimes, therefore, originate in the government policy of the moment.
Since that policy is influenced by many considerations it is not easy
to discover in any specific case of the new law, what exactly and exclusively are
the forces which have produced it nor, of course, is the policy always followed
consistently or logically.
So long as crimes continue to be created by government policy the
nature of the crime will elude true definition.”[10]
The form of human behaviour which is prohibited or restricted in the
criminal law depends on the changing society and also depends on the acceptance factor of the people. In general, human conduct which is believed to be
pernicious to social interests is labelled as a crime. This explanation helps
us to understand that the meaning of crime changes with time, as any human a behavioural pattern that was once considered one of the recognised interests of
the society might lose its importance over time and would hence cease to be
considered as a crime.
For example,
recently S. 497 that criminalised the conduct of adultery was revoked and
it is no longer regarded as a criminal offence since now the societal belief about
this kind of conduct has changed.
Similarly, whenever society assumes that certain conduct which was
once unimportant for them, but now threatens the interests of the society would
be considered a regressive step and would also be included as a criminal
offence. However, in today’s concept of state only political powers i.e. the legislature has
been given the right to decide which human conduct deserves to be a crime, is
this a benefit or a drawback? Although people gave this right to the state
themselves in modern times the actions of the state are not much
justified considering there are various acts and practices which should have
been labelled as crime decades ago. For instance, male and same-sex rape,
marital rape, stalking of men, etc. Currently, these issues have no written
legal support.
Conclusion
At the end what is important is to understand that crime is a social
phenomenon. The need for the sanctioning prohibition of certain human conduct first
aroused when the state was formulated and people waved there right for the state to
manage the affairs. For effective working of the state, it is important to
trust the legislature on its actions to proclaim conduct as a crime. Yet there
is no particular definition that defines crime in its totality. The nature of
crime might be heinous or of non-grievous nature, but the fact that it is
crime, the act-doer is deemed to be punished.
As also stated by Lord Atkin, in accordance with ‘The domain of
criminal jurisprudence’, there can be various inspections of which acts can be
considered as crimes, but eventually what matters is those who commit them
would be punished.[11]
The idea of rights and protection suggests the correlativity of the
wrongful acts. For example, a person who does not pay the bank EMI might have
been withholding the money to enable his right to live but is at the same time
infringing the bank’s right to receive payment. While the law does not deal with
intersectionality, the commission of such offences cry for the need to redefine
crime and assert a definition that involves a relative idea of justice.
While the world still needs a new definition of crime, it is important
to include various categories of conduct as crimes as stated above. The purpose
of the article is to summarize the rationale behind the crime and generate a perspective
that suggests the establishment of new boundaries of the term crime.
By,
LawVastutah
[1] Russell on Crime, JW Cecil Turner (ed.), Vol 1, 12th Edn, Stevens & Sons, London, p 18.
[2] Glanville Williams, “The Definition of Criminal Law” [1955] Contemporary Legal Problems 107, p 130.
[3] Kenny’s Outlines of Criminal Law, JW Cecil Turner (ed.), 19th Edn, Cambridge, second Indian Reprint, 2004, p 1.
[4]
[5] The Elements of Crime, available at http://www.legalservicesindia.com/article/1228/The-Elements-and-Stages-of-a-Crime.html (Last visited on September 5, 2020).
[6] Legal Wrong, available at https://www.srdlawnotes.com/2016/11/legal-wrong.html (Last visited on September 9, 2020).
[7] The Elements of Crime, available at http://www.legalservicesindia.com/article/1228/The-Elements-and-Stages-of-a-Crime.html (Last visited on September 5, 2020).
[8] Legal Wrong, available at https://www.srdlawnotes.com/2016/11/legal-wrong.html (Last visited on September 9, 2020).
[9] Jeremy Bentham, available at https://plato.stanford.edu/entries/bentham/ (Last visited on September 9, 2020).
[10] Kenny’s Outlines of Criminal Law, JW Cecil Turner (ed.), 19th Edn, Cambridge, second Indian Reprint, 2004, p 1.
[11] Proprietary Articles Trade Association v AG of Canada, [1931] AC 310, p 324
References
1. Prof. S.N.Mishra; Indian Penal Code; Central Law
Publications, Allahabad, Tenth Edition (September) 2001.
2. K.D. Gaur; A Text Book of The Indian Penal Code,
Universal Law Publishing Company Pvt. Limited, New Delhi, Third Edition 2004
3. O.P. Srivastava; Principles of Criminal Law,
Eastern Book Company, Lucknow, Fifth Edition, 2010
4. PSA Pillai: Criminal Law, 14th Edn.
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