Definitions

criminalise

Crime

[krahym]

In the sociological field, crime is the breach of a rule or law for which some governing authority or force may ultimately prescribe a punishment. The word crime originates from the Latin crimen (genitive criminis), from the Latin root cernō and Greek κρινω = "I judge". Originally it meant "charge (in law), guilt, accusation."

When society deems informal relationships and sanctions insufficient to create and maintain a desired social order, there may result more formalized systems of social control imposed by a government, or more broadly, by a State. With the institutional and legal machinery at their disposal, agents of the State are able to compel individuals to conform to behavioural codes and punish those that do not. Various mechanisms are employed to regulate behaviour, including rules codified into laws, policing people to ensure they comply with those laws, and other policies and practices designed to prevent crime. In addition are remedies and sanctions, and collectively these constitute a criminal justice system. Not all breaches of the law, however, are considered crimes, for example, breaches of contract and other civil law offences. The label of "crime" and the accompanying social stigma are normally reserved for those activities that are injurious to the general population or the State, including some that cause serious loss or damage to individuals. The label is intended to assert an hegemony of a dominant population, or to reflect a consensus of condemnation for the identified behavior and to justify a punishment imposed by the State, in the event that an accused person is tried and convicted of a crime. Usually, the perpetrator of the crime is a natural person, but in some jurisdictions and in some moral environments, legal persons are also considered to have the capability of committing crimes.

Definition

A normative definition views crime as deviant behavior that violates prevailing norms cultural standards prescribing how humans ought to behave normally. This approach considers the complex realities surrounding the concept of crime and seeks to understand how changing social, political, psychological, and economic conditions may affect the current definitions of crime and the form of the legal, law enforcement, and penal responses made by society. These structural realities are fluid and often contentious. For example, as cultures change and the political environment shifts, behavior may be criminalised or decriminalised, which will directly affect the statistical crime rates, determine the allocation of resources for the enforcement of such laws, and influence the general public opinion. Similarly, changes in the way that crime data are collected and/or calculated may affect the public perceptions of the extent of any given "crime problem". All such adjustments to crime statistics, allied with the experience of people in their everyday lives, shape attitudes on the extent to which law should be used to enforce any particular social norm. There are many ways in which behaviour can be controlled without having to resort to the criminal justice system. Indeed, in those cases where there is no clear consensus on the given norm, the use of criminal law by the group in power to prohibit the behaviour of another group may be considered an improper limitation of the second group's freedom, and the ordinary members of society may lose some of their respect for the law in general whether the disputed law is actively enforced or not.

Legislatures pass laws (called mala prohibita) that define crimes which violate social norms. These laws vary from time to time and from place to place: note variations in gambling laws, for example. Other crimes, called mala in se, are nearly universally outlawed, such as murder, theft and rape

Criminalization

  • One can view criminalization as a procedure intended as a pre-emptive, harm-reduction device, using the threat of punishment as a deterrent to those proposing to engage in the behavior causing harm. The State becomes involved because they usually believe costs of not criminalizing (i.e. allowing the harms to continue unabated) outweigh the costs of criminalizing it (i.e. restricting individual liberty in order to minimize harm to others).
  • Criminalization may provide future harm-reduction even after a crime, assuming those incarcerated for committing crimes are more likely to cause harm in the future.
  • Criminalization might be intended as a way to make potential criminals pay for their crimes. In this case, criminalization is a way to set the price that one must pay (to society) for certain actions that are considered detrimental to society as a whole. In this sense criminalization can be viewed as nothing more than State-sanctioned revenge.

States control the process of criminalization because:

  • Even if victims recognize their role as victims, they may not have the resources to investigate and seek legal redress for the injuries suffered: the enforcers formally appointed by the State have the expertise and the resources.
  • The victims may only want compensation for the injuries suffered, while being indifferent to a possible desire for deterrence (see Polinsky & Shavell (1997) on the fundamental divergence between the private and the social motivation for using the legal system).
  • Fear of retaliation may deter victims or witnesses of crimes from taking any action. Even in policed societies, fear may inhibit reporting or co-operation in a trial.
  • Victims alone may lack the economies of scale which might allow them to administer a penal system, let alone collect any fines levied by a court (see Polinsky (1980) on the enforcement of fines). Garoupa & Klerman (2002) warn that a rent-seeking government's primary motivation is to maximize revenue and so, if offenders have sufficient wealth, a rent-seeking government is more aggressive than a social-welfare-maximizing government in enforcing laws against minor crimes (usually with a fixed penalty such as parking and routine traffic violations), but more lax in enforcing laws against major crimes.
  • As a result of the crime, victims may die or become incapacitated.

History

The first civilizations had codes of law, containing both civil and penal rules mixed together, though not always in recorded form. The Sumerians produced the earliest surviving written codes, and it is known that Urukagina had an early code that does not survive. A later king, Ur-Nammu left the earliest code that has been discovered, creating a formal system of prescribed penalties for specific cases in 57 articles, the Code of Ur-Nammu. The Sumerians later issued other codes including the "code of Lipit-Ishtar" (last king of Isin - 20th century BCE). This code contains some fifty articles and has been reconstructed by the comparison among several sources.

Successive legal codes in Babylon, including the code of Hammurabi, reflected Mesopotamian society's belief that law derived from the will of the gods (see Babylonian law). (Many states at this time were theocratic, and their codes of conduct were religious in origin or reference.)

Sir Henry Maine (1861) studied the ancient codes available in his day and failed to find any criminal law in the "modern" sense of the word. While modern systems distinguish between offences against the "State" or "Community", and offences against the "Individual", the so-called penal law of ancient communities was not the law of "Crimes" (crimina); it was the law of "Wrongs" (delicta). Thus, the Hellenic laws treated all forms of theft, assault, rape, and murder as private wrongs, and left action for enforcement up to the victims or their survivors (which proved a challenge in that although laws existed, there were no formalized courts in the earliest system). It was the Romans who systemized law and exported it to their Empire. Again, the initial rules of Roman Law were that assaults were a matter of private compensation. The significant Roman Law concept was of dominion. The pater familias was in possession of all the family and its property (including slaves). Hence, interference with any property was enforced by the pater. The Commentaries of Gaius on the Twelve Tables treated furtum (modern theft) as a tort. Similarly, assault and violent robbery were allied with trespass as to the pater's property (so, for example, the rape of a slave would be the subject of compensation to the pater as having trespassed on his "property") and breach of such laws created a vinculum juris (an obligation of law) that could only be discharged by the payment of monetary compensation (modern damages). Similarly, in the consolidated Teutonic Laws of the Germanic tribes, there was a complex system of money compensations for what would now be considered the complete range of criminal offences against the person from murder down.

Even though Rome abandoned its Britannic provinces sometime around 400 AD, the Germanic mercenaries who had largely become instrumental in enforcing Roman rule stayed on and continued to use a mixture of Roman and Teutonic Law, with much written down under the early Anglo-Saxon Kings. But only when a more unified kingdom emerged following the Norman invasion and the kings of England attempted to assert power over the land and its peoples did the modern concept emerged, namely that a crime is not only an offence against the "individual", it is also a wrong against the "State". This is a common law idea and the earliest conception of a criminal act involved events of such major significance that the "State" had to usurp the usual functions of the civil tribunals and direct a special law or privilegium against the perpetrator. All the earliest criminal trials were wholly extraordinary and arbitrary without any settled law to apply, whereas the civil delictual law was highly developed and consistent in its operation (except where the King wanted to raise money by selling a new form of Writ). The development of the idea that it is the "State" dispensing justice in a court only emerges in parallel with or after the emergence of the concept of sovereignty.

In continental Europe, Roman Law persisted, but with a stronger influence from the Church. Coupled with the more diffuse political structure based on smaller State units, various different legal traditions emerged, remaining more strongly rooted in Roman jurisprudence modified to meet the prevailing political climate. In Scandinavia, the effect of Roman law did not become apparent until the 17th century, and the courts grew out of the things, which were the assemblies of the people. The cases were decided by the people (usually largest freeholders dominating) which later gradually transformed into a system of a royal judge nominating a number of most esteemed men of the parish as his board, fulfilling the function of "the people" of yore.

From the Hellenic system onwards, the policy rationale for requiring the payment of monetary compensation for wrongs committed has involved the avoidance of feuding between clans and families. If families' feelings could be mollified by compensation, this would help to keep the peace. On the other hand, the threat of feudal warfare was played down also by the institution of oaths. Both in archaic Greece and in medieval Scandinavia, the accused was released if he could get a sufficient number of male relatives to swear him unguilty. This may be compared with the United Nations Security Council where the veto power of the permanent members ensures that the organization is not drawn into crises where it could not enforce its decisions. These means of restraining private feuds did not always work or prevented the fulfillment of justice but, in the earliest times, the "States" were not prepared to provide an independent police force. Thus, criminal law grew out of what is now tort and, in real terms, many acts and omissions that are classified as crimes overlap civil law concepts.

The development of sociological thought from the 19th century onwards prompted some fresh views on crime and criminality and fostered the beginnings of criminology as a study of crime in society. Nietzsche noted a link between crime and creativity in The Birth of Tragedy he asserted: "The best and brightest that man can acquire he must obtain by crime". In the 20th century Michel Foucault in Discipline and Punish made a study of criminalization as a coercive method of state control.

Natural-law theory

Justifying the State's use of force to coerce compliance with its laws has proven a consistent theoretical problem. One of the earliest justifications involved the theory of natural law. This posits that the standards of morality are derived from or constructed by the nature of the world or of human beings. Thomas Aquinas said: "the rule and measure of human acts is the reason, which is the first principle of human acts" (Aquinas, ST I-II, Q.90, A.I), i.e. since people are by nature rational beings, it is morally appropriate that they should behave in a way that conforms to their rational nature. Thus, to be valid, any law must conform to natural law and coercing people to conform to that law is morally acceptable. William Blackstone (1979: 41) describes the thesis:

"This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original."

But John Austin, an early positivist, applied utilitarianism in accepting the calculating nature of human beings and the existence of an objective morality, but denied that the legal validity of a norm depends on whether its content conforms to morality, i.e. a moral code can objectively determine what people ought to do, the law can embody whatever norms the legislature decrees to achieve social utility, but every individual remains free to choose what he or she will do. Similarly, Hart (1961) saw the law as an aspect of sovereignty with lawmakers able to adopt any law as a means to a moral end. Thus, the necessary and sufficient conditions for the truth of a proposition of law were simply that the law was internally logical and consistent, and that State power was being used with responsibility. Dworkin (2005) rejects Hart's theory and argues that fundamental among political rights is the right of each individual to the equal respect and concern of those who govern him. He offers a theory of compliance overlaid by a theory of deference (the citizen's duty to obey the law) and a theory of enforcement, which identifies the legitimate goals of enforcement and punishment. Legislation must conform to a theory of legitimacy, which describes the circumstances under which a particular person or group is entitled to make law, and a theory of legislative justice, which describes the law they are entitled or obliged to make.

Indeed, despite everything, the majority of natural-law theorists have accepted the idea of enforcing the prevailing morality as a primary function of the law. The problem with this view is that it makes any moral criticism of the law impossible in that, if conformity with natural law is a necessary condition for legal validity, all valid law must, by definition, be morally just. Thus, on this line of reasoning, the legal validity of a norm necessarily entails its moral justice. The solution to this problem is to admit some degree of moral relativism and to accept that norms may evolve over time and, therefore, the continued enforcement of old laws may be criticized in the light of the current norms. The law may be acceptable but the use of State power to coerce citizens to comply with that law is not morally justified. In more modern conceptions of the theory, crime is characterized as the violation of individual rights. Since so many rights are considered as natural, hence the term "right", rather than man-made, what constitutes a crime is also natural, in contrast to laws, which are man-made. Adam Smith illustrates this view, saying that a smuggler would be an excellent citizen, "...had not the laws of his country made that a crime which nature never meant to be so."

Natural-law theory therefore distinguishes between "criminality" (which derives from human nature) and "illegality" (which originates with the interests of those in power). The two concepts are sometimes expressed with the phrases malum in se and malum prohibitum respectively. A crime malum in se is argued to be inherently criminal; whereas a crime malum prohibitum is argued to be criminal only because the law has decreed it so. This view leads to a seeming paradox, that an act can be illegal that is no crime, while a criminal act could be perfectly legal. Many Enlightenment thinkers such as Adam Smith and the American Founding Fathers subscribed to this view to some extent, and it remains influential among so-called classical liberals and libertarians.

Distinctions

Governments criminalise antisocial behaviour — and treat it within a system of offences against society — in order to justify the imposition of punishment. A series of distinctions are made depending on the passive subject of the crime (the victim), or on the offended interest(s), in crimes against:

Or one can categorise crimes depending on the related punishment with sentencing tariffs prescribed in line with the perceived seriousness of the offence with fines and noncustodial sentences for the least serious, and (in some States) capital punishment for the most serious.

Types

Researchers and commentators may classify crime into categories, including violent crime, property crime, and public order crime.

U.S. classification

In the United States since 1930, the FBI has tabulated Uniform Crime Reports (UCR) annually from crime data submitted by law enforcement agencies across the United States. Officials compile this data at the city, county, and state levels into the Uniform crime reports (UCR). Violations of laws, which are derived from common law, are classified as Part I (index) crimes in UCR data, and further categorised as violent and property crimes. Part I violent crimes include murder and criminal homicide (voluntary manslaughter), forcible rape, aggravated assault, and robbery, while Part I property crimes include burglary, arson, larceny/theft, and motor vehicle theft. All other crimes are classified as Part II crimes.

Analysts can also group crimes by severity, some common categorical terms including:

For convenience, such lists usually include infractions although, in the U.S., they may not be the subject of the criminal law, but rather of the civil law. Compare tortfeasance.

Crimes against international law

Crimes defined by treaty as crimes against international law include:

From the point of view of State-centric law, extraordinary procedures (usually international courts) may prosecute such crimes. Note the role of the International Criminal Court at The Hague in the Netherlands.

Religion and crime

Socially accepted or imposed religious morality has influenced secular jurisdictions on issues that may otherwise concern only an individual's conscience. Examples of activities that have been criminalized on religious grounds are alcohol consumption (prohibition), abortion and stem cell research. In various historical and present-day societies institutionalized religions have established systems of earthly justice which punish crimes against the divine will and specific devotional, organizational and other rules under specific codes, such as Islamic sharia or Roman Catholic canon law.

Military jurisdictions and states of emergency

In the military sphere, authorities can prosecute both regular crimes and specific acts (such as mutiny or desertion) under martial-law codes that either supplant or extend civil codes in times of war.

Many constitutions contain provisions to curtail freedoms and criminalize otherwise tolerated behaviors under a state of emergency in the event of war, natural disaster or civil unrest. Such activities may include assembly in the streets, violation of curfew, or possession of firearms.

Employee crime

Two common types of employee crime exist: embezzlement and sabotage. The complexity and anonymity of computers may help sinister employees camouflage their crimes. The victims of the most costly scams are banks, brokerage houses, insurance companies, and other large financial institutions. Most people guilty of embezzlement do not have criminal histories. It is more likely that they have a gripe against their employer, have financial problems, or simply can't resist the temptation of a loop-hole they have found. Screening and background checks on perspective employees can help; however, many laws make some types of screening difficult or even illegal. Fired or disgruntled employees sometimes sabotage their company's computer system as a form of 'pay back'. This sabotage may take the form of a Logic bomb, a computer virus, or creating general havoc.

Some places of employment have developed measures in an attempt to combat and prevent employee crime. Places of employment sometimes implement security measures such as cameras, fingerprint records of employees, and background checks. Although such methods have been subject to debates on privacy issues, they serve a good purpose to the companies using them. Not only do these methods help prevent employee crime, but they protect the company from punishment and/or lawsuits for negligent hiring.

See also

Statistics

Notes

Bibliography

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