What is a Crime?
The concept of “crime” does not have one universally accepted definition. Over the years, various scholars, legal thinkers, and criminologists have attempted to define crime based on their philosophical perspectives, societal values, and historical circumstances.
Generally, crime refers to conduct that society considers harmful enough to warrant formal punishment by the state. However, depending on who defines it, the emphasis might vary.
Different Definitions of Crime:
Michael J. and Mortimer J. in their book Crime, Law and Social Science (1933) stated:
“The most precise and least ambiguous definition of crime is that which defines it as behavior which is prohibited by the criminal code. This is the only possible definition of crime.”
This definition focuses solely on acts expressly prohibited by law, meaning only behaviors listed in the criminal code are considered crimes.
Smith and Hogan, in their book Criminal Law (6th Ed.), described crime as:
“Wrongs which judges have been held or Parliament has from time to time laid down as sufficiently injurious to the public to warrant the application of criminal procedure to deal with them.”
Here, crime is seen as public wrongs that threaten public welfare and thus require the intervention of criminal law procedures.
P.G. Osborn in Concise Law Dictionary (5th Ed.) defines crime as:
“An act, default, or conduct prejudicial to the community, the commission of which the law renders the person responsible liable to punishment by a fine or imprisonment in special proceedings.”
This definition highlights two important features: the harmfulness of the act to the community, and the fact that it is punishable through formal legal proceedings.
Characteristics of Crime According to Kenny:
In Kenny’s Outlines of Criminal Law (17th Ed.), three essential features of crime are emphasized:
- Harmful Human Conduct:
- Crime must involve conduct (action or omission) by a human being that brings about harm.
- The harm is of a kind that the sovereign (the State) seeks to prevent for public welfare.
- Threat of Punishment:
- The state uses the threat of punishment (such as imprisonment, fines, or other penalties) as a measure to prevent harmful behavior.
- Special Legal Proceedings:
- Special procedures, distinct from civil processes, are used to determine criminal guilt and administer punishment.
What is Criminal Law?
Criminal law is a body of law that deals with acts considered harmful to society as a whole. It is a branch of public law, which also includes constitutional law and administrative law.
Whereas civil law mainly protects individual rights and resolves disputes between private parties, criminal law defines the obligations individuals owe to society and seeks to protect the collective interests of the public.
Nature and Purpose of Criminal Law:
- Protection of the Public:
Criminal law seeks to prevent behavior that threatens public safety, morality, order, and well-being. - Definition of Prohibited Conduct:
It clearly outlines what behaviors are forbidden and prescribes penalties for those who violate the prohibitions. - State Enforcement:
In criminal proceedings, it is the state (usually through the police or public prosecutors) that initiates prosecution against the alleged offender. - Determination of Guilt or Innocence:
Criminal procedures are designed to determine whether the accused person committed the crime and, if guilty, to impose an appropriate sanction.
Punishments in Criminal Law:
Criminal sanctions can be serious and are designed to maintain law and order. They include:
- Capital Punishment: Death penalty for the most serious offenses (though this is rare and subject to constitutional safeguards).
- Imprisonment: Loss of liberty by placing an offender in prison or jail.
- Corporal Punishment: Physical punishment like whipping (now abolished in many jurisdictions).
- Fines: Monetary penalties.
- Probation or Parole: Supervision and restrictions instead of or after imprisonment.
- House Arrest: Restriction of movement to a certain place.
Objectives of Criminal Law Punishment:
Five major objectives guide the imposition of punishment in criminal law:
- Retribution:
Criminals deserve to be punished proportionally to the harm they caused. The idea is to “balance the scales” of justice by ensuring wrongdoers suffer consequences. - Deterrence:
- Specific Deterrence: Deter the individual offender from re-offending.
- General Deterrence: Deter others in society from committing similar offenses.
- Incapacitation:
Removing the offender from society to prevent further harm (e.g., imprisonment). - Rehabilitation:
Reforming the offender’s character so they can return as a productive, law-abiding member of society. - Restitution:
Compensating the victim for their losses or injuries caused by the criminal act.
Crime and Morality
Relationship between Crime and Morality:
Although there is a relationship between crime and morality, the two concepts are not identical.
- Morality consists of society’s views about what is right and wrong.
- Crime refers to conduct prohibited and punishable under state-enacted laws.
In other words, all crimes may not necessarily be immoral, and all immoral acts are not necessarily crimes.
Historical Development:
- In early societies, moral rules governed human behavior even before the establishment of formal laws or state authority.
- Over time, when organized states emerged, criminal law was formalized separately from moral codes.
In a class society, the ruling class often uses legal systems to impose its own morality on the wider society.
Judicial Attempts to Link Criminal Law and Morality:
Shaw v DPP [1962] AC 220
In this case:
- Shaw published a “Ladies Directory” to assist prostitutes in finding clients.
- He was charged and convicted of conspiracy to corrupt public morals.
- The Court upheld the conviction, holding that courts have a residual power to enforce morality when public welfare is threatened.
Lord Simonds stated:
“The courts have the duty to protect not just public safety and order, but also the moral welfare of the state.”
Knuller Ltd v DPP [1973] AC 435
In this later case:
- The House of Lords disagreed with Shaw’s decision.
- The Court held that courts do not have a residual power to create new criminal offenses simply to enforce morality.
Thus, the principle today is that criminal law should be based on written law, not merely morality.
Differences Between Law and Morality:
| Aspect | Law | Morality |
|---|---|---|
| Source | Created by State authorities | Arises from society, culture, religion |
| Enforcement | Courts, Police, Government institutions | Public opinion, social pressure |
| Scope | Narrow (specific rules) | Broader (covers a wide range of behavior) |
| Coercion | Legal sanctions (fines, imprisonment) | Social sanctions (approval, disapproval) |
Sources of Criminal Law in Tanzania
In Tanzania, criminal law originates from several sources including
