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criminal law-1

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ABSTRACT Criminalization or criminalisation, in criminology, is "the process by which behaviors and individuals are transformed into crime and criminals".[1] Previously legal acts may be transformed into crimes by legislation or judicial decision. However, there is usually a formal presumption in the rules of statutory interpretation against the retrospective application of laws and only the use of express words by thelegislature may rebut this presumption. The power of judges to make new law and retrospectively criminalise behaviour is also discouraged. In a less overt way, where laws have not been strictly enforced, the acts prohibited by those laws may also undergo de facto criminalisation through more effective or committed legal enforcement.

INTRODUCTION Aim & Objectives To illustrate Criminalization with reference to crimes, harms and moral wrongs. Scope To portray all the aspects of criminalization. Research Questions 1. What are its problems? 2. What are the principles of criminalization? Research Methodology To achieve the Aims & Objectives of this paper by researching through various books and websites which are related to the topic.

PROBLEMS OF CRIMINALIZATION There has been some uncertainty as to the nature and extent of the contribution to be made by the victims of crime. But, as Garkawe (2001) indicates, the relationship between victimology and criminology has become problematic. The concern is that, within the dialectic of Right Realism and Left Realism, a focus on the victim promotes rights selectively for certain victims, and advocates the assumption that some victim rights are more important than competing rights or values in society. For example, an Islamic feminist might seek consistency of treatment for women as victims and, therefore, demand the decriminalization of abortion, adultery, and seduction (Zina is a Hudud offense insharia law), and the criminalization of domestic violence and sexual harassment. In formal academically published theory, the real ruling class of a society reaches a temporary view on whether certain acts or behavior are harmful or criminal. Historically this one theory will be modified by scientific, medical evidence, by political change, and the criminal justice system may or may not treat those matters as crimes. Conversely, when local politics determines that it is no longer a crime, they may be decriminalized. For example, Recommendation No. R (95) 12 adopted by the Committee of Ministers of the Council of Europe on the management of criminal justice, advocates that crime policies such as decriminalization, depenalisation or diversion, and mediation should be adopted wherever possible. But the law and order debate between right and left politicians is often superficial and unscientific, formulating policies based on their appeal to an uniformed electorate rather than properly conducted research.

PRINCIPLES OF CRIMINALIZATION Several principles may underpin decisions about criminalization. These include the de minimis principle, that of the minimum criminalization. Under this principle, the general harm principle fails to consider the possibility of other sanctions and the effectiveness of criminalization as a chosen option. Those other sanctions include civil courts, laws of tort and regulation. Having criminal remedies in place is seen as a "last resort" since such actions often infringe personal liberties – incarceration, for example, prevents the freedom of movement. In this sense, law making that places a greater emphasis on human rights. Most crimes of direct actions (murder, rape, assault, for example) are generally not affected by such a stance, but it does require greater justification in less clear cases. The policy of "social defense" can be seen as an opposing view. It argues that criminalization is used against "any form of activity which threatens good order or is thought reprehensible". The minimization principle may unwittingly prevent the adaptation of the law to new situations. In general, worldwide policy makers have created a myriad of smaller offences, in contradiction to the minimization principle and more in keeping with the social defence. Harm Leading criminal law philosophers, such as Dennis Baker and Joel Feinberg have argued that conduct should only be criminalized when it is fair to do so. In particular, such theorists assert that objective reasons are needed to demonstrate that it is fair to criminalize conduct in any given case. The commonly cited objective justification for invoking the criminal law is harm to others, but it cannot deal with all situations. For example, people are not necessarily harmed by public nudity. Feinberg suggests that offence to others also provides an objective reason for invoking the criminal law, but it clearly does not as offence is determined according to conventional morality. People experience a range of physical and social injuries in different contexts which will vary according to the level of economic and political development of their country. Some will be injured out of poverty and malnutrition, others by violence which might stem from a major conflict such as war or from the personal violence in a robbery. The environment may be damaged by pollution, there may be hazards at work. Many of these sources of injury will be ignored while the state may delegate powers of control to a number of different agencies within an international framework where supranational agencies and human rights organisations may offer assistance in responding to the causes of those injuries.

Moral Approaches and Autonomy The extent to which behaviours considered morally wrong in a given jurisdiction should be criminalized is controversial. Lying or breaking promises are not in general criminalised, for example. Patrick Devlin believed that moral behaviour was essential in maintaining the cohesion of a state, and so lawmakers should be entitled to criminalise immoral behaviour. However, opponents of this approach typically suggest use of a harm principle only and that immorality is not a reason in itself since outcomes of such activity can be used to come to a conclusion alone. Devlin's argument uses the disgust of the general public as a definition of morality; however, issues involving prejudice have shown this to be flawed and opponents push for a much stricter definition if this approach is to be used. Devlin suggested a jury to give an indication of immoral behaviour. As well as prejudice, views were likely to vary widely on issues such as homosexuality, contraception and other matters, particularly those influenced by religion. Agreement would be hard to find. Other opposition has been from liberal groups which favour approaches which maximise individual rights. A moral basis for criminalization would be paternalistic, thereby contrasting with personal autonomy. The European Convention of Human Rights, in the most part supporting individual rights from government interferences, still includes a provision for interference "for the protection of health and morals"such as legally requiring seat belts to be worn (in some jurisdictions) are hard to justify if an individualistic approach is taken, since, if public health provision is ignored, little harm is caused to others. Joseph Raz argues that the state cannot and should not enforce morality; rather, any attempt to limit individual autonomy should be done only to limit harm. Certain moral ideals may be justifiable if they extend autonomy. If the immoral conduct of others impinges on someone else's autonomy, then that can be legislated against. There are some groups for whom the principle of autonomy is weakened: those under an age of majority and those people who are impaired by, for example, a mental disorder. In general, these people are protected from activities with significant consequences, if they are not in a position to make reasoned decisions themselves. This may involve the criminalization of under-age drinking, smoking, gambling and sexual activities. Such criminalization is rarely challenged. In British law, a distinction between public and private acts was made in the Wolfenden report, which examined sexual activities (particularly homosexuality and prostitution). Some acts would effectively become legal within private settings, but illegal in public settings. The justification for this was the concept of shock or offensive to the public. Such a line was favoured by Joel Feinberg, who argued that it was a good reason in support of legislation if it effectively prevented "serious offence" to persons other than the actor. Philosophers such as Feinberg struggle to quantify the ideology behind the illegality of acts which in another setting would be acceptable (that acts themselves not causing harm, for example), for example nudity. Since such acts publicly are made illegal on the basis of shock, then whether to criminalise depends on a shifting body of public

opinion, which varies from place to place and from time to time. The concept of "insult" rather than "offensive" may be more specific.

Omission Common law does not often find an actor liable for omission – failing to do something required by the law. Where this has applied it has typically been in industrial regulation, in matters of social security or some personal regulated activity such as driving (for example, in the case of a hit and run).These form conditions placed upon operating in a particular manner and are thus understood in that context. There are few general duties in common law jurisdictions, although these do include the responsibility of a parent to safeguard their children, to a landowner to prevent offences being carried out there, and to someone creating a dangerous situation to attempt to limit that danger. Proponents of limited liability for omissions suggest that the wording for such a law would be vague, possibly involving "reasonable" care or action, and so would be hard to enforce. This would give prosecutors wide discretion, which may be opposed to justice. Morally, omission is viewed by many as a far lesser problem than act; compared to murder, allowing someone to die is seen as much smaller. A requirement to spend one's time and energy helping others would seem to contradict the autonomy many other laws aim to provide the individual with. Opponents point out these arguments fail to consider the harm that such omissions may cause, in contradiction to the harm principle many legal systems start out with. Life and physical integrity are often the highest priorities of a legal system. Difficulties in definition are in common with many other areas, theorists such as Feinburg point out. A non-burdensome rescue is likely to be less valuable than freedom of action. Limited liability is considered as article 223 of the French Penal Code, which criminalises: "(1) a person who voluntarily neglects to prevent a serious crime of offense against that person, if that crime could be prevented without personal risk or risk to others; and (2) a person who voluntarily neglects to give, to a person in peril, assistance which could be rendered without personal risk or risk to others.” This is common with several other European jurisdictions. Whilst open to the criticisms of vagueness and prosecutor discretion, it has not been seen as overly oppressive.

Procedure When a state debates whether to respond to a source of injury by criminalising the behaviour that produces it, there are no pre-set criteria to apply in formulating social policy. There is no ontological reality to crime. The criminal justice system responds to a substantial number of events that do not produce significant hardship to individual citizens. Moreover, events which do cause serious injuries and perhaps should be dealt with as crimes, e.g. situations of corporate manslaughter, are either ignored or dealt with as civil matters. The criminalisation process defines and classifies behaviour. It broadcasts the laws so that no-one may have the excuse of ignorance, and disposes of those who will not obey. There are now more criminal laws and they are penetrating deeper into the social structures of modern societies. Crime control has become an industry, yet it remains ineffective in providing protection to all its citizens from harm. Such as it is, the process is made up of three components: 1. Creation of a social order. This is both a socio-economic process, a fundamental ordering of social relations so that those things necessary for social survival can be produced and distributed in some predictable fashion" and an ideological process so that there can be a development of values, beliefs, and ideas related to the concrete tasks of production and distribution. Thus, society must develop the apparatus of law creation, law enforcement and punishment and the system must be acceptable to the majority of those who live in the community. If the laws do not match the general mores, their enforcement will be a source of friction and disharmony. Conformity to the social order must, for the most part, be self-enforced. 2. For the times when self-enforcement fails, society must create a legal order. This part of the process sees the centralisation of power within the institutions of the political state. Some states justified the criminalisation process as demonstrating their concerns about safety and security, the policy of control, policing, criminal justice, and penal practice. The modern state is decentralising and privatising its functions. This is changing the character and content of the remaining institutions of the state which must now work cooperatively with other for-profit agencies. 3. The political order must realign so that the remaining political entities such as legislatures and judges set agreed targets for state control and then produce actual outputs of the legal order, i.e. of people defined as criminal and processed through that system.

A BRIEF OVERVIEW ON THE BOOK: CRIMES, HARMS & WRONGS Authors: A. P. Simester and Andrew von Hirsch Crimes, Harms and Wrongs begins with an account of what it means to criminalize conduct. According to Simester and von Hirsch, what is distinctive about the criminal law is that it "speaks with a moral voice," such that in criminalizing conduct, the state thereby announces that it views such conduct as morally wrongful. (p.6) This generates two consequences: first, that whether X is properly criminalized depends crucially on whether X states a moral wrong; and, second, that the point of using the criminal law—as opposed to less morally freighted regulatory options—is to communicate that wrongfulness. Not all wrongs, however, should be criminal wrongs; a positive case in favor of criminalization must be made in terms of the harm principle, offense to others, or paternalist intervention. Indeed, absent such a further justification, the fact that conduct is wrongful does not provide even a pro tanto reason in favor of criminalization. (p.29) The bulk of Crimes, Harms and Wrongs is devoted to unpacking each of these principles, and discussing their application and limitations in various contexts. The principle aim of Simester and von Hirsch's discussion of the harm principle is to limit its reach through the notion of what they call "fair imputation." They defend a fairly capacious understanding of the offense principle, hedged by various "mediating principles" such as social tolerance and the difficulty of avoiding the offensive conduct. In contrast, they argue for a relatively restrictive understanding of permissibly paternalistic interventions. They claim that paternalistic coercion—absent grounds for thinking a particular individual's understanding of her own preferences are temporarily disordered—should not typically be considered a reason in favor of criminalization. While they take a somewhat more accommodating line toward indirect paternalism, which removes otherwise available options rather than coercing an individual directly, they nevertheless argue against even widely-accepted instances of indirectly paternalistic criminal regulation, such as the ban on assisted suicide. The book concludes with a critical discussion of the UK's relatively recent anti-social behaviour order (ASBO) legislation, which allows judges to impose wide-ranging probationary conditions on individuals suspected of anti-social, but not necessarily criminal, conduct. As I have noted, the central concern that Simester and von Hirsch address in connection with the harm principle is whether any limit can be placed on the more and more remote harms that may in some sense be traced back to seemingly innocuous conduct. The regress of harm is stopped, they argue, by the notion of "fair imputation" – that is, even if engaging in certain type of conduct in some way contributes to a future harm, it must still be explained why that harm is not just causally but morally traceable to the initial class of agents. If that account cannot be made out, then the state would in effect be criminalizing non-wrongful conduct.

What fair imputability requires depends on the kind of harm in question. Simester and von Hirsch distinguish between (a) harm as abstract endangerment (by which they appear to have in mind endangerment offenses that are complete even when in a given case it is clear ex ante that there is no actual risk of injury); (b) harms whose occurrence is predicated on further acts (by the individual or someone else); and (c) those that are constituted by aggregate actions to which any given individual contribution is likely to be trivially minor. Thus, the duties of social cooperation in the provision of collective goods looms large in the context of abstract endangerment offenses (such as, for instance, obeying the speed limit on the interstate), whereas gun control legislation, which regulates some on the basis of harms inflicted by others, depends on the degree to which the class of defendants can be said to be "normatively involved" in the resulting harmful acts. Where there is no affirmation or identification with those further acts, criminalizing the initial, non-wrongful act amounts to authorizing punishing X for the crimes of Y. This strategy for cabining the reach of the harm principle places a great deal of weight on the proposition that criminalization is only appropriate when the conduct criminalized is wrongful, a proposition that rests in turn on their view that the criminal law "speaks with a moral voice." But this proposition highlights a general methodological concern with Simester and von Hirsch's argument. When they assert that the criminal law speaks with a moral voice and communicates the wrongfulness of certain types of conduct, Simester and von Hirsch are evidently speaking of criminal law in an idealized sense—not the extant black-letter law of this or that jurisdiction, but rather the underlying social function of the criminal law. So far, so good. The concern arises, however, when Simester and von Hirsch turn from describing the abstract social function of criminal law to providing an evaluative framework for extant positive law. After all, since an abstract function can be concretely instantiated in many different ways, it is not clear there is any reason to think that the condemnatory-communicative function Simester and von Hirsch have identified in the abstract corresponds with what actual legislatures have historically labeled "criminal." Arguably, areas of tort, administrative and immigration law may also serve a condemnatory-communicative function, while large swaths of so-called "criminal" law do not. This could be true even if Simester and von Hirsch are correct that one important function of the law is to condemn certain types of conduct as wrongful. The potential misfit between the abstract function of the criminal law and how actual law is labeled leads Simester and von Hirsch into some rather curious positions. For instance, one finds them insisting that what makes it justifiable to make a criminal offense out of speeding on the highway even when one can safely drive above the limit is that "drivers have an obligation to cooperate in a safety-promoting scheme by observing certain speed limits," and that people may "properly be held to blame for … refusal to cooperate in that scheme." (p.62) I do not know whether or not there is such a moral obligation. But why do we even need to answer that question? Simester and von Hirsch appear to presuppose that the sheer fact that such an offense happens to be administered under the auspices of the "criminal" law means that it must be part of the abstract social function they identify with criminalization, which in turn drives the thought that such offenses must involve a violation of some kind of moral duty. One might well have thought, however, that the character of the justification we should give for a legal rule ought not turn in the first

instance on how that rule happens to have been labeled. In fact, it seems to be an upshot of Simester and von Hirsch's position that if the legislature decided to re-label traffic infractions as regulatory infractions tomorrow, then whether or not there is the kind of moral duty Simester and von Hirsch insist upon would suddenly become immaterial to the justification of the fine imposed on the speeding driver. The problem, of course, is not limited simply to trivial offenses. If a state were to impose very severe monetary penalties on the possession of narcotics, for instance, the justification for that kind of state action probably ought not turn on whether the state (perhaps adventitiously) decides to describe those penalties as criminal fines or as civil taxes. In short, the failure to sufficiently distinguish between the idealized condemnatorycommunicative function of the criminal law identified by Simester and von Hirsch and actually extant criminal law makes it difficult to apply the principles they sketch in Crimes, Harms and Wrongs to evaluate existing legislation. For while it is surely the case that not everything that is actually contained in any actual criminal code is consistent with the principles they describe, before we can conclude that a suspect statute is unjustifiable criminal law, we need to know whether that statute is criminal in more than name only—since, if not, Simester and von Hirsch's principles (e.g., of fair imputation) do not even apply. Finally, as noted earlier, Simester and von Hirsch allow that the offensiveness of conduct can be a legitimate ground for criminalizing it. They construe offensiveness in terms of conduct that – rather than simply eliciting psychological states of disgust or offense – can be rationally explicated as insulting or degrading or, more generally, disrespectful. It is not enough that conduct is upsetting; reasons have to be given to explain why such conduct counts as, e.g., an insult or exhibitionism or some other category of offensive conduct. Surprisingly, however, Simester and von Hirsch insist that criminalization of offensive conduct should be limited not just to conduct that is wrongful, but also to conduct that is harmful in addition to being offensive. As they acknowledge, this raises the question of whether there is one principle here or two–whether what matters, for the purposes of criminalization, is the harmfulness of offensive conduct, or the offensiveness of harmful conduct. If the former, then the so-called offense principle would appear to be little more than an articulation of a particular use of the more general harm principle. Simester and von Hirsch argue that this misunderstands the harm principle, as it may be legitimate to criminalize some types of harmful and offensive conduct (hate speech, for instance) but not others, since not all such instances are wrongful. This reply is puzzling, however, as the reasons Simester and von Hirsch adduce for viewing wrongful behavior as a constraint on criminal legislation are based on their views about the censorious character of the criminal law, rather than anything particular to offensiveness. Of course, it may well be true that the motivating factor behind, say, a state's adoption of hate speech legislation is the extraordinary offensiveness of the conduct rather than its harmfulness per se. Nevertheless, if hate speech genuinely does cause a fairly imputable harm, then it is punishable under the harm principle regardless of what the motivation for such legislation was. Similarly, although offensive conduct may involve a specific type of wrong and a specific type of resulting harm, as Simester and von Hirsch allege, that

would nevertheless appear insufficient to explain why offense is a distinct principle rather than simply a particular application of the harm principle. The enormous reliance that modern states place on the criminal law strongly suggests that enriching our understanding of the proper scope of the criminal law is one of the most important tasks on the agenda of criminal law scholars. With Crimes, Harms and Wrongs, Simester and von Hirsch have made a significant contribution to that project.

BIBLIOGRAPHY • • • Crimes, Harms & Wrongs by A. P. Simester and Andrew von Hirsch Dennis J. Baker, The Right Not to be Criminalized: Demarcating Criminal Law's Authority (Ashgate 2011) Dennis J. Baker Dennis, "The Moral Limits of Criminalizing Remote Harms"

TABLE OF CONTENTS

• • • • • •

INTRODUCTION PROBLEMS WITH CRIMINALIZATION PRINCIPLES OF CRIMINALIZATION CRIMES, HARMS AND WRONGS – AN OVERVIEW CONCLUSION BIBLIOGRAPHY

CRIMINAL LAW – 1 RESEARCH PAPER

CRIMINALIZATION

ADITYA CHANDRA, 1016265,

4TH BBA LLB, SLCU. CONCLUSION Criminalization is the process of making a particular act or type of behavior illegal according to the established laws of a given area. There are a few ways in which this can happen, depending on the type of government that oversees a country or region, and the most common is for a law to be passed that criminalizes an action. Judges can sometimes criminalize a certain action, however, by ruling in a particular way that establishes a precedent for future rulings. In contrast to criminalization is decriminalization, in which an act that is illegal is changed to become legal instead. The term “criminalization” refers to making something illegal when it was previously legal. This usually occurs in a country or region when a governmental body, such as the Legislative branch of the US government, passes a law that criminalizes a particular act. In many places, such criminalization is only applied to future actions and cannot typically be applied to actions that occurred prior to this process. Abuses of power within some governments, however, can lead to instances in which an act is criminalized in order to bring charges against a person whose actions were previously legal.

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