Sunday, November 15, 2009

Criminal Law and its Chief Elements

In the science of Criminology, it is very essential to study the criminal law. Besides, no adequate understanding of the crime or the criminal is possible without having a prior under standing of the criminal law. This will be appreciated if we remind ourselves that the meaning and scope of crime is determined and guided by the constitution of the criminal law. Nude dancing or even sexual intercourse in cinema and theatre does not constitute crime in many European countries, while it is definitely criminal in India. Thus what is crime or not crime is governed by the criminal law of the land. There are so many acts which may be regarded immoral and perverse but are perfectly normal and constitute non cognizable offences. For example, copulation of some one with his secretary will be regarded immoral by many; yet it constitutes no crime. If an adult woman is forcibly raped but in court of law she declares it was through her consent, there is nothing criminal. Thus we can appreciate the intimate connection between criminal law and the crime. What Shakespeare said about good and bad: there is nothing good or bad only thinking makes it so-applies, mutatis mutandis to crime and criminal law. There is nothing criminal except what the criminal law declares it to be.

Definition of Criminal Law

According to Sutherland, “The criminal law is a body of specific rules regarding human conduct which have been promulgated by political authority, which apply uniformly to all members of the classes to which the rules refer, and which are enforced by punishment administered by the state”.

Essential Features of Criminal Law

The criminal laws are different from other laws. Some laws are determined by the customs and traditions of the society, community, family or group. Indeed, these laws are rules and cannot be said to be law in the regular sense of the term. The criminal laws are of some special type and pertain to the individuals in a particular field of activity. The laws have dual aspect: one is theoretical and the other is the practical. The theoretical aspect is concerned with the laws passed by various legislative assemblies, provincial and central. The legislative assemblies formulate, legislate, amend and repeal these laws. The practical aspect is concerned with police and law courts. Their function is executive and judicial. The function of the police is the implementation of the law and the maintenance of law and order. The function of the courts is to decide what is criminal according to law and to decide the amount of punishment due to particular act. Following are the main elements of the criminal law:

(1) Political Authority,
(2) Uniformity and Regularity,
(3) Specificity,
(4) Enforcement and Punishment

(1) Political Authority – Every law must have the backing of political authority: and the criminal law is no exception to this general rule. Without political authority there can be no conception of the criminal. The political authority, as expressed in the forms of legislative bodies, is responsible for formulating the law and getting it the requisite sanction of the political authority, that is, getting it passed in the legislature houses and thus making it a law or an act which would have the force recognized by the executive and judicial authorities.
There may however be certain societies where the political authority is concentrated in one person as in the case of monarchy or dictatorship. In tribal societies this authority lies with the tribal chief.

(2) Uniformity and Regularity – An ideal law must have a uniform application to citizens and should make no distinction based on sex, caste, creed, status or religion. If a law makes such distinctions it is not a law but a whim.

(3) Specificity – The criminal law pertains only to a field of activity which may be said to be limited to violations or transgressions of the law. The criminal law is not about observance but break of law. Thus it is limited to a specific field.

(4) Enforcement and Penalty – Now law is worth the paper on which it is transcribed if there is no authority to enforce it and no authority to punish its violation. This means that besides legislative aspect, the law must also have executive and judicial aspects as well. According to Jhering, “A legal rule without coercion is a fire that does not burn, a light that does not shine”.


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