UNIT I

GENERAL
PRINCIPLES OF
CRIMINAL LAW
Dr. Saadiya

Asst. Professor

F/o Law, JMI

Herbert Wechsler
The Challenge of a Model Penal Code,
65(7) Harvard Law Review 1952
• Whatever views one holds about the penal law, no one will question its importance in
society. This is the law on which men place their ultimate reliance for protection against all
the deepest injuries that human conduct can inflict on individuals and institutions. By the
same token, penal law governs the strongest force that we permit official agencies to bring to
bear on individuals. Its promise as an instrument of safety is matched only by its power to
destroy. If penal law is weak or ineffective, basic human interests are in jeopardy. If it is harsh
or arbitrary in its impact, it works a gross injustice on those caught within its toils. The law
that carries such responsibilities should surely be as rational and just as law can be.
Nowhere in the entire legal field is more at stake for the community or for the individual.
Criminal Law

• Mechanism for preservation of social order.

• Authorizes infliction of state punishment
• Criminalizing a certain kind of conduct deemed
‘harmful’ and ‘undesired.’
• To institute a threat of punishment in order to
supply a pragmatic reason for not doing the
undesirable act.
• Safeguarding personal safety, security of life,
liberty and property.
What Makes Criminal Law Unique?
R A Duff, The Realm of Criminal Law, OUP

• Criminal law is more than a nominal kind.

• Makes criminal law a distinctive kind of law is that it operates as a mechanism of collective condemnation.

• To criminalize a type of conduct is to portray, and condemn, it as wrongful.

• Punishment is intended to communicate or to express censure.

• Censurable wrongfulness is integral to criminal law in a way that it is not integral to a system of non-criminal
regulation.
• Criminal law involves a description of the • Civil law involves compensation to an
behavior which makes a person liable to identifiable beneficiary for the damage done by
punishment by the state. the other.

• Prohibits behavior that represents serious • The process of civil justice redistributes wealth
wrongs against an individual or against some to compensate individuals for injuries of tort
fundamental social value or institution. and contract.

What distinguishes a criminal from a civil sanction?

“The judgment of community condemnation which accompanies and justifies its imposition.” -Henry Hart, The Aims of the Criminal Law
.
• A conviction is “an expression of the community’s moral outrage, directed at the criminal
actor, for her act.”
Joshua Dressler, Understanding Criminal Law
• A criminal conviction asserts blame in the community’s name. Certain other bodies of law
operate as condemnatory mechanisms (punitive damages in tort, for instance) but no other
body of law is designed and perceived as a mechanism of condemnation that operates on
the polity’s behalf.
Sandra Mayson, The Concept of Criminal Law
• The criminal law’s mechanism of collective condemnation might be directed toward any number of
goals.
• sustain a polity’s civil order
• attain retributive justice
• harm prevention
• inculcation of pro-social norms or attitudes

The aims of the criminal law might remain in perpetual flux. They might depend on the nature and
the aims of the polity whose law it is
• Graver wrongs than torts
• Accused treated with greater indulgence
than defendant in civil cases.
• Benefit of doubt.
• State as protector of rights of subjects.
• Societal condemnation and stigma
accompanies the conviction.
 Approaches to Crime

Traditional

Modern
TRADITIONAL APPROACH MODERN APPROACH

• Focus on formulating a definition of “crime”. • Focus on “functional aspect” of criminal

• Difficult to bring in within the moral compass of law.
a definition the flexible notion of a crime which • declaratory function.
is conditioned by the changing government
• risk and preventive function
policies, moral values and social opinions of
the community from time to time.

• Not suitable for complex societies.

Definition

• Kenny:

“crimes are wrongs whose sanction is punitive, and in no way remissible by any private person but
remissible by the crown alone, if remissible at all.”
• Blackstone:

"an act committed or omitted in violation of Public Law forbidding or commanding it".

“a crime is a violation of public rights and duties due to the whole community considered as a community.”
“A crime is a violation of a right considered in reference to the evil tendency of such violation as regards
the community at large.” (edited)
• Glanville William
An act capable of being followed by criminal proceedings having a criminal outcome, and a
proceeding or its outcome is criminal if it has certain characteristics which mark it as
criminal.
 “crime” is a
criminal law is
human conduct
the law that
that has been
deals with
labelled as crime
crimes.
by criminal law.
• Functional approach

• “….to preserve order and decency, to protect citizens from what is offensive and injurious and to
provide sufficient safeguard against exploitation and corruption of others, particularly those who are
young, weak in body or mind, inexperienced, or in a state of physical, official or economic dependence.”

• “it is not the function of law to intervene in the private lives of citizens or to seek to enforce any
particular pattern of behavior further than is necessary to carry out the above purposes.”
Wolfenden Report, 1957
• Declaratory function
• declares the form of wrongdoing that is serious enough to justify the state censure on public
leading ultimately to a conviction and punishment.

• Risk and preventive function

• declares forms of conduct or omission as prohibited, because of their likelihood to lead to a
significant risk or danger to an interest protected by the law and this is justified by the public
censure inherent in conviction and punishment
 Principles of
Criminalization
The Harm Principle
“The principle is that the sole end for which mankind is warranted, individually or collectively, in
interfering with the liberty of action of any of their members is self-protection. That the only
purpose for which power can be rightfully exercised over any member of a civilized community
against his will is to prevent harm to others. His own good, either physically or moral, is not a
sufficient warrant, he cannot rightfully be compelled to do or to forbear because it would be
better for him to do so, because it will make him happier, because in the opinion of others, to do
so would be wise or even right…….the only part of the conduct of anyone, for which he is
amenable to society, is that which concerns others. In the part which merely concerns himself,
over his own body and mind, the individual is sovereign.” (emphasis supplied)
• J S Mill, On liberty
• Criminalization should be reserved for the most serious invasions of interests and for when
other forms of social control (civil liability, administrative regulation) may not suffice.
• Joel Feinberg
• Those states of setback of interests that are the consequence of wrongful acts or omission of others.
• The sense of ‘harm’ must represent the overlap of normative and non normative senses: only setbacks
of interest that are wrongs, and wrongs that are setbacks to interests, are to count as harms in the
appropriate sense.
• A harms B by ‘wronging’ B or treating him unjustly. (normative)
• A harms B by ‘invading, and thereby setting back his interests.’ (non-normative)
• Harmful but permissible conduct is not eligible for criminal penalties because it fails to satisfy the
wrongfulness requirement.
Principle of legality

• The law must be clear

• Capable of being obeyed

• Be readily available to the Public.

Principle of individual autonomy

• Each individual should be treated as responsible for his or her own behaviour.

• Individuals in general have the capacity and sufficient free will to make meaningful choices.

• An individual should not be held criminally liable unless he had the capacity and a fair opportunity to do
otherwise.

• If autonomy is to be respected the state should leave individuals to decide for themselves and should
not take decisions in their best interest
Principle of minimal criminalization

• Law should provide for criminal sanction only when absolutely necessary and the conduct in
question is sufficiently serious to warrant intervention by the criminal law.
• The principle of respect for human rights.
• The right not to be punished.
• Criminalization as a last resort.
• The principle of not criminalizing where this would be counter productive
Principle of Proportionality

• The sentence accorded to a crime should reflect the seriousness of the offence.

• A way of grading the seriousness of harm suffered by the victim needs to be done.

• In assessing the degree of harm, one must first determine the interest of the victim that have been
interfered with and then considering the extent of the interference.
Consensus & Conflict
Models of Crime
The Consensus View of Crime

• Crimes are behaviors believed to be repugnant to all elements of society.

• This approach to crime implies that it is a function of the beliefs, morality, and rules established by
the existing legal power structure.
• The consensus view of crime links illegal behavior to the concept of social harm. Though people
generally enjoy a great deal of latitude in their behavior, it is agreed that behaviors that are harmful to
other people and society in general must be controlled.
• Social harm sets strange, unusual, or deviant behavior—or any other action that departs from social
norms—apart from criminal behaviors.
• Drug use, prostitution, pornography?
• According to the consensus view, society is justified in controlling these so-called victimless
crimes because public opinion holds that they undermine the social fabric and threaten the
general well-being of society.
• Society has a duty to protect all its members—even those who choose to engage in high-risk
behaviors.
The Conflict View of Crime

• The conflict view depicts society as a collection of diverse groups—owners, workers,

professionals, students—who are in constant and continuing conflict.
• Groups able to assert their political power use the law and the criminal justice system to
advance their economic and social position.
• Criminal laws, therefore, are viewed as acts created to protect the haves from the have-nots.
• Rather than being class neutral, criminal law reflects and protects established economic,
racial, gendered, and political power and privilege
 The Interactionist View of Crime

• This position holds that

• People act according to their own interpretations of reality, through which they assign meaning
to things;
• They observe the way others react, either positively or negatively; and
• They reevaluate and interpret their own behavior according to the meaning and symbols they
have learned from others.
• According to this perspective, there is no objective reality. People, institutions, and events are viewed
subjectively and labeled either good or evil according to the interpretation of the evaluator.
• According to the interactionist view, the definition of crime reflects the preferences and
opinions of people who hold social power in a particular legal jurisdiction.
• Criminals are individuals people choose to label or stigmatize as outcasts or deviants
because they have violated social rules.
• Crimes are outlawed behaviors because society defi nes them that way, not because they
are inherently evil or immoral acts
• Unlike the conflict view, the interactionist perspective does not attribute capitalist economic
and political motives to the process of defining crime. Instead, interactionists see the criminal
law as conforming to the beliefs of “moral crusaders” or moral entrepreneurs, who use their
influence to shape the legal process in the way they see fi t.
Philosophical versus
Contextual Approaches to
Crimes
Philosophical approach
CLASSICAL SCHOOL
PRE CLASSICAL SCHOOL

• Uses the idea of free will to explain that offenders choose to

• Man by nature is simple and his actions are engage in crime and that the best way to control crime is to deter
offenders and make it uncomfortable or unprofitable for them to
controlled by some superpower. offend.
• The right of society to punish the offender was, • Man’s emergence from the State’s religious fanaticism
involved the application of his reason as a responsible
well recognized. individual.
• The offender was regarded as an innately • It is the act of an individual and not his intent which forms the
basis for determining criminality within him.
depraved person who could be cured only by
torture and pain. • Punishment as a principal method of infliction of pain,
humiliation and disgrace to create ‘fear’ in man to control his
behaviour.
• State has the right to punish the offenders in the interest of
public security.
Contextual Approach

• Offenders’ motivations and examines their physical characteristics, social background,

and moral development in order to determine why they offend and what can be done to
rehabilitate them.
• Focuses on the offender rather than the offense or the law and posits that humans do not
necessarily have free will and that human behavior is determined by various external
factors.
Economic approach to crime

• Economics treats criminal law as one of the mechanisms for controlling potentially harmful act.
• Criminal law competes with alternatives such as civil law, administrative law, private cooperation, and
excise taxes as a means of helping prevent those activities, and only those activities, which impose
social costs that exceed their social benefits.
• The basic criterion is that, given the structure of the costs and benefits, criminal law is used if it enables
society to get closer to a socially optimal level of harmful activity.
• The appropriate domain for the use of criminal law is thus determined pragmatically by the costs and
benefits of using criminal law tools relative to those of using non-criminal instruments.
• Economics can be defined as the study of human choice in a world in which resources are
limited in relation to human wants.
• The economic approach to criminal behaviour is predicated on the assumption that
individuals choose to commit crimes.
• In the economic analysis of crime, an individual's decision process of whether or not to
commit a crime is postulated and individual criminal behaviour follows.
• This approach presents a significant contrast to the usual approach of the other social
sciences which begin with an analysis of the patterns of criminal behaviour in a society and
then attempts to infer individual criminal behaviour.
• The economic analysis of individual choice behaviour in general and individual criminal
choice behaviour in particular begins with the assumption that man is a rational maximizer of
his satisfactions.
• An individual can be thought of as satisfying the assumption of economic rationality if his
choice of behaviour is consistent, no matter how illogical the choices may appear to anyone
else.
• Implicit in the economic assumption that man is a rational maximizer of his utility (satisfaction)
is the assumption that man responds to his surroundings.
• Economists do not a priori divide individuals into two groups, criminal and law abiding.
Rather, they assume every individual has a choice of whether or not to participate in an
illegal activity. If an individual's decision is to participate in an illegal activity, the decision may
be altered by changing the factors affecting his decision.
 Historical
Aspect of
Criminal Law
Criminal • 1st Stage:

Jurisprudence in Hunters stage

Primitive Ages A tooth for a tooth and an eye for an eye and a life for a
life.
Law of lex talionis prevailed-retaliation.
• 2nd Stage:
Compensation made acceptable.
Individual not allowed to take law in his hand.
State punished the wrong doers.
• 3rd Stage:
State appointed permanent commission to investigate and
punish the wrong doers.
• 4th Stage:
Commissions constituted into permanent benches.
10 judges appointed according to definite rules.
Jurisdiction and powers were defined.
Roman Criminal • Twelve tables
law • De Delictis (8)
• Digests and Codes
• Justinian
• Publicia Judicia
• Extra Ordinaria Crimia
• Privata Delicta
• Publicia Judicia
Defined penalties.
• Lex Julia Majestatis (offences against state)
• Lex Julia de Adulteriis (sexual offences)
• Lex Julia De Vi Publica et Privata (acts of violence)
• Lex Cornilia De Sicariis et Veneficiis (homicide)
• Privata Delicta
Private wrongs. Special action set apart involving a definite result for the injured
party.
• Theft
• Injury to person
• Injury to dignity
• Injury to reputation
• Injury to liberty
• Extra Ordinaria Crimia
• Punishment at the discretion of the judge
• Family offences, introducing new religion, profiteering, abortion etc.
Development of Criminal
Law in England

• Leges Henrici Primi

• Concept of wer, bot and wite.
• Punishments were very severe and
barbaric
• Procedure of Trials
• Reforms by William the Conqueror
Criminal Law of the Hindu
System

• Kautilya’s Arthashashtra
• Manu Smriti
• Yagnavalkya Smriti
Wrongdoer had to compensate the injured
and punishment was imposed
Right of private defence was a fully
developed law.