Sunday, November 15, 2009
Main Principles of the Origin of Criminal Law
In modern times the law regarding crimes is clear and well defined; there is no element of ambiguity in it. However, this was not so in the olden days; therefore, the question that naturally crops up for consideration is how did criminal law originate the develop. As a matter of fact there is no particular event which accounts for the origin of the criminal law. Regarding the origin and development of the criminal law there is no recorded history; only there are different opinions and guesses in this regard. Due to this variety of views regarding the origin of the criminal law, there have come up various schools of thought. Following are the main viewpoints or schools of thought about the origin of Criminal Law.
(1) Classical Theory – According to Classical Theory the origin of criminal law is in the conception of tort. A tort is different from crime because whereas the crime is a dispute between the individual and the state, the tort is a dispute between individual and individual. In ancient times when an individual felt that his rights were infringed, he would make personal effort to settle the matters and try for compensation. Later on, with the development of the collective consciousness, people started calling these acts as crimes against the community and gradually things came to a pass when rules were formed which formally declared these acts criminal and thus was the criminal law born.
The classical theory may have some valid points but it fails to account for many facts. As Sutherland very aptly points out, “This theory is inadequate, however, as a general or universal explanation of the criminal law”. This theory has over-emphasized the individual and tired to find the origin of collective consciousness through individual consciousness; but there cannot be individual consciousness without the social consciousness because the idea of individual follows rather than precedes the collective.
(2) Crystallization of Mores – According to this theory the criminal law has had its origin in the customs and mores of the yore. In order to appreciate this theory it is essential to under stand the meaning of the term custom. The custom is an accepted response to certain definite social situation. These customs develop gradually and keep modifying in response to altered situations. Man is a creature of habit. Men living in a particular social situation develop certain common habits. It is these common habits which alter on take the form of customs. When the idea of social welfare gets attached to the customs these are called mores or traditions. Thus the traditions when they develop, become all embracing and society is concerned about their break and observance. Any breach is looked upon seriously. Their break arouses social resistance and leads to disapproval by the society of these violations and boycott of the person, violating them. The social disapproval and resistance gradually crystallize into criminal laws. The criminal law naturally includes in it the idea of punishment.
The term which traces the development of criminal law in social customs and traditions is a definite improvement upon the classical theory and has great deal of truth in it. However, it can not be considered to be adequate explanation of the origin of criminal law. The modern penal system is definitely a great advance on the customs and these can not offer any explanation of modern industrial laws.
(3) Rational Theory – According to the rational theory the criminal law took its origin from certain ideas of great and original thinkers. In every society, in every crime and at all times there have been some thinkers who have probed deeply with the acuity and sharpness of their intellect in the life of their times. Their penetration into its depth has revealed to them in sudden flashes some striking original ideals which have proved seminal and ushered in revolutionary changes in the society. It is to these thinkers that the society owes the development of criminal. This theory has an element of truth but like the Hero Theory of history it is lopsided.
(4) Conflict of Interests Theory – According to this theory the new ideas are born of the conflicts of interests among different classes. Every society is divided into different classes and there is no conflict of interest among classes. The class which is able to gain dominance declares the activity of other classes as antisocial and therefore criminal. The people who are in control of power want the status quo to continue and whatever is calculated to under mine the status quo is declared criminal. This is a version of Marxian theory and like the general theory of Marx it is one sided.
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