Sunday, November 15, 2009
Criminal Law and its Chief Elements
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,
(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”. Tags: Criminology
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