2.1. Crime is a Deceiving Concept

There are no easy explanations for the phenomena collectively called crime. Crime is deceiving concept because it covers an enormous range of human behaviour. Crime may be associated in the public mind with pick-pocketing, robberies, house-breakings, and riots, but crime is also a businessman placing bribe to win a city contract. It is also syndicate-controlled loan shark taking over a business from a businessman who couldn’t meet the exorbitant repayment schedule. It is quiet a student suddenly a rifle to the top of a university tower and begins shooting at those below. Crime is often mistakenly thought of as the vice of the few. It is not. It is everywhere in the society. It is in the bed room of a married couple where wife battering and marital rape happen, among the family members where child abuse and incest happen on the road where eve teasing and cheating happen, at work place where a variety of criminal behaviour is found including abuse of power, corruption and sexual harassment. Therefore, trying to find a single comprehensive answer to “the crime problem” is, like trying to lump together measles and schizophrenia, or lung cancer and a broken leg.

The concept of crime has always been dependent on public opinion.  In fact “law” itself reflects public opinion of the time.  Obviously, every society formulates certain rules to regulate the behavior of its members, the violation of which is forbidden.  However, the problem arises as to what acts should be forbidden, or what acts should be selected for punishment by the society or the state, in other words what acts should be declared as crime.  According to Terence Morris, “Crime is what society says is crime by establishing that an act is a violation of the criminal law.  Without law there can be no crime at all, although there may be moral indignation which results in law being enacted.”  Therefore, in order to know the nature and the content of crime we must first of all know what ‘Law’ is, because the two questions “Crime” and “Law” are so closely related with each other that it is very difficult to understand one without knowing the other.  “Law”, is the aggregate of rules set by men politically superior, or sovereign, to men as politically subject.  Law is a command enjoining a course of conduct to be observed by all the members of the society and is backed by a sanction.  The command may be of a sovereign or the command of a political superior to political inferiors, or the command of a legally constituted body or the legislation duly enacted by a legally constituted legislature and addressed to the members of the society in general.  That being the definition of law, disobedience or violation of law may be termed as crime.  But all violations of law are not crimes for an act done in breach of law of contract, personal law or a civil law, are only civil wrongs leading to civil proceedings. Only such violations, which endanger the safety of individual, his liberty and property, are crimes. To common man crimes are those acts which people in society “consider worthy of serious condemnation”. Therefore, crime is an act which both forbidden by law and the moral sentiments of the society.

According to Wechsler, “the purpose of penal law is to express the social condemnation of forbidden conduct, buttressed by sanctions calculated to prevent it”.  To understand this explanation of Penal law three questions have to be answered:

1. What kind of conduct is ‘forbidden’?
2. What kind of ‘formal social condemnation’ is considered appropriate to prevent such conduct?
3. What kinds of ‘sanctions' are considered as best calculated to prevent officially out lawed conduct?

• Forbidden Conduct:

The concept of forbidden conduct is not a static one; it changes with the change of social norms. The very definition and concept of crime is not only according to the values of a particular group and society, its ideals, faith, religious attitudes, customs, traditions and taboos but also according to the form of government, political and economic structure of society and a number of other factors. For instance, what is a sex crime in India and Eastern countries may be a sweet heart virtue in West and Scandinavian countries.  What is an offence against property in a capitalist culture may be a lawful way of living in a socialist society.  What is permissible in a free and affluent society may be a pernicious vice in a conservative set up.

The notion about crime also changes with time.  What is an offence today may not be an offence tomorrow and what has not been an offence till yesterday may be declared a crime to day.  For example, polygamy, till the passing of the legislation prohibiting a man from marrying again during the subsistence of the first marriage, marrying more than one wife was no crime. Now it is a punishable crime under the Criminal Code.  Another example is “abortion”.  Forcibly aborting the foetus from the womb of the mother for reasons whatsoever was considered as a great sin against the humanity by all societies till recent past.  Now, with the advancement of medical sciences termination of pregnancy on medical grounds has been legalized and approved by many though not all.

Thus, the concept of crime is ever changing.  What was not crime yesterday may be a crime today and what is a crime today may not remain a crime tomorrow.  Therefore, social changes affect the criminal law in many ways, such as:

• Through changes in structure of society, especially in its transition from rural self-contained and relatively sparsely populated to a highly urbanized and industrial pattern.
• Through changes in the predominant moral and social philosophy.
• Through developments in science especially in Biology and Medicine.

• Impact of Social Change on the Law of Crimes:

Criminal offences dealing with protection of life and liberty have essentially remained unchanged throughout all ages all over the civilized world.  Only certain crimes against human body like abortion and sexual crimes took new forms due to changes in the attitude of the society towards such conduct.

The crimes against property have undergone a lot of profound changes mainly as a result of transformation of a primitive agricultural society into a commercial or industrial society.  The original crime ‘theft’ has been widened to include embezzlement, fraudulent conversion that is designated as “White Collar Crimes”.  The concept of property has widened including not only physical things but also varieties of other assets i.e. even the things which are not capable of being taken away physically.  These include electricity, shareholders claims, Copyrights, etc., which have become subjects of such crimes.

2.2. Crime is A Multidimensional Problem:

Crime is not just the responsibility of the police, the courts, and the prisons. Crime cannot be controlled without the active support of individual private citizens, schools, businesses, and labour unions. This is so because crime has its effects on everyone-not just the criminal and his victim. The fear of crime has affected basic patterns of life of people. People in society are in need of an efficient system that is capable of checking the incidence of crime in the society so that they can feel a sense of safety and security which is essential for a peaceful living. Therefore, the problem of crime has been the concern of more than the law enforcement machinery.

Clearly, then, crime has many dimensions.  To the student of crime, it is a problem of explanation and interpretation.  To the legislator, it is a problem in definition and articulation. To the police, it is a problem in detection and apprehension.  To the judge, it is a problem of due process and of punishment.  But, it is a problem too for more than these.  It is a problem to the person who is engaged in breaking the law; it is a problem to the victim who may be deprived by it of life, possessions and even the pursuit of happiness.  And finally to others it is a threat to tranquility and a disturbance in the social order.  (__Robert Quiney)

2.3 Definition of Crime:

The transient nature of crime makes it very difficult to derive any precise definition of the term.  In spite of the attempts made by various jurists, a satisfactory definition of crime has not been achieved.

• Literal Meaning of Crime:

The word “Crime” was originally taken from a Latin term “Crimen” which means “to charge”.  The Greek expression “Krimos” is synonymous to a Sanskrit word ‘Krama’ which means “Social order”.  Therefore, in common parlance the word crime is applied to those acts that go against social order and are worthy of serious condemnation.

• General Meaning of Crime:

The Oxford English Dictionary defines crime as “an act punishable by law as forbidden by statute or injurious to public welfare”.  It is a very wide definition including many things in the present day complex society.  Any act like selling adulterated food, molestation of women or young children in buses and railways, misleading advertisements can be said to be injurious to public welfare.  It is too wide a definition and fails to precisely identify the thing it purports to define.  Though there is no precise definition for crime, we can still have an understanding of the word by examining different definitions put forward by different jurists.

• Crime is a “Public Wrong”—Blackstone:

Blackstone, (1968) has defined crime as “an act committed or omitted in violation of a public law either forbidding or commanding it”. Thus, according to Blackstone crime is an act in violation of public law.  But what is ‘public law’?  It has several accepted meanings.  According to Austin, (yrar) public law is identical with “Constitutional law”.  This being so, the crime would then mean an act done in violation of Constitutional law.  The definition would thus cover only political crimes namely crimes against the state, and crimes like arbitrary deprivation of life, personal liberty and property, leaving aside a vast area of other criminal behavior.  Germans interpret public law to include both constitutional law and criminal law.  As we have already seen, it is fallacious to define crime with the help of constitutional law.  And it would be meaningless to define crime using the expression “criminal law”. It would rather amount to arguing in a circle. What is a crime? - Violation of criminal law.  What is criminal law? -The law that deals with “Crimes”.  In this sense also Blackstone’s definition fails to define crime satisfactorily.  There is yet another accepted meaning of public law given by Kenny, (year) According to him, public law means all “positive law” or “municipal law” which means “any law made by the state”.  Then crime would mean an act done in violation of all positive law which is not true for many acts though done in breach of law are not crimes.  Thus it may be said that, whatever meaning we attach to the expression “public law”, the definition of Blackstone proves unsatisfactory.

Blackstone, (year) perhaps visualizing the inadequacy of his first definition of crime tried to give a modified definition and said, “A crime is a violation of the public rights and duties due to the whole community, considered as a community in its social aggregate capacity”.

The second definition of Blackstone proceeds in terms of “public rights and duties” replacing the phrase “public law”.  In fact even this definition is not without error.  In addition to that Stephen, while editing Blackstone’s Commentaries committed further error as he slightly modified the definition and reconstructed it in the following words: “A crime is a violation of a right, considered in reference to the evil tendency of such violation as regards the community at large.”

Stephen (year) committed two errors in modifying Blackstone’s second definition:

1. He dropped the word ‘duties’ from Blackstone’s definition narrowing down the scope of crime to the violation of rights only, whereas criminal law fastens criminal liability even on those persons who omit to perform duty required by law, for example, failure to report the preparation or commission of an crime (Art. 39 & 443 of the Criminal Code) failure to appear before courts as a witness or an accused person (Art.448 of the Criminal Code) a parent’s gross neglect in bringing up a child (Art. 659 of the Criminal Code), failure to provide the maintenance allowances stipulated under (Art. 658 of the Criminal Code), etc.

Similarly, are other acts, which do not violate any one’s right but are nevertheless crimes, e.g., being in possession of arms and ammunition, (Art.808 of the Criminal Code) carrying of prohibited arms (Art. 809 of the Criminal Code).

2. The second error committed by Stephen in editing Blackstone’s definition lies in the expression evil tendency of such violation as regards the community at large.  It means that crimes are breaches of those laws, which injure the community.  However, all the acts that are injurious to the community are not necessarily crimes.  Even transactions of civil nature can injure community.  For example, where the Directors of a company fail to manage its affairs properly, the mill is closed, workers are rendered unemployed, production of a commodity essential for the society is stopped—will it not be an act which is injurious to the society?  But can we prosecute the Directors for any crime?    The answer to this will probably be “NO”.

Thus, as has been rightly pointed out by Kenny, “it is possible that, without committing any crime at all, a man may by breach of trust or by negligent mismanagement of a company’s affairs, bring about a calamity incomparably more wide spread and more severe than that produced by stealing a cotton pocket hand-kerchief, though that petty theft is a crime.”  Therefore, to define crimes as those breaches of law which injure the community is not completely true.

• CRIME is A “Moral wrong” – Stephen:

According to Stephen (year) crime is “an act forbidden by law and which is at the same time revolting to the moral sentiments of the society”.  Defining crime, as something against the moral sentiments cannot be accepted because there are acts though not immoral, classified as highly criminal, e.g., Treason i.e.  ‘anything done to displace the governing body of state.’  Treason is graded as a crime in the highest degree and considered as a heinous crime by all Penal Codes.  This is not because the moral sentiments of the society are being affected but for the security and stability of the government.  Similarly, there are acts, which are highly immoral but not criminal. For example, an expert swimmer stands by the side of a river and sees a child drowning in the river and makes no effort to save the child and the child dies by drowning.  His act may be highly immoral but it is neither a criminal nor a civil wrong.

• Crime is A “Procedural Wrong” –John Austin:

Austin (year) and some writers (e.g.…) define crime in terms of the proceedings adopted in such cases.  Austin defined crime while making a distinction between civil and criminal wrongs.  He observed, “A wrong which is pursued by the sovereign or his subordinates is a crime.  A wrong which is pursued at the discretion of the injured party and his representatives is a civil injury”.

The definition does not explain a number of crimes under the Criminal Code in which the prosecution could be initiated only at the instance of injured party as is done in the case of civil wrongs.  For example, in case of Adultery (Art. 618 Criminal Code) no court shall take cognizance of the crime except on a complaint made by the injured spouse (Art 13 Cr. P. C). Thus, even Austin’s definition of crime in terms of procedural wrong also is not without defect.

• Crime is a “Creation of Government Policy”:

‘Russell’ has rightly observed that, “to define crime is a task which has so far not been satisfactorily accomplished by any writer.  In fact, criminal offences are basically the creation of a criminal policy adopted from time to time by those sections of the community who are powerful or astute enough to safeguard their own security and comfort by causing sovereign power in the state to repress conduct which they feel may endanger their position”. We find ample evidences supporting the observation made by some of these are Kenny’s “Outlines of Criminal Law” (1966, 19th ed., by J.W. Cecil Turner, Cambridge University Press, UK) brings out the following examples in this regard.

In the first place, as the history of the early Roman law reveals, an offensive conduct may become recognized as a crime as a result of the combined effect of a number of different social forces.  For instance, in a primitive monarchy or Oligarchy when all nominal state power rested in the hands of a personal sovereign or a small group of men, anything done in the nature of an attempt to displace the governing body was classed as “Treason” and such   behavior is criminal in the highest degree.  Such an attempt would be repressed by all means available to the ruling element.  The person who commits treason is called a traitor; and any one who slew him was held guiltless.

Another example is that of the English Law of Outlawry.  The ancient city-states of Europe depended largely on the strength and construction of their “City Walls”.  For this reason erecting private buildings near the City Walls was prohibited since these might hinder the movements of defending troops within the city walls and offer cover to approaching enemies from outside.  The maintenance of these walls in a state of efficiency was so important that at Rome religious superstition was invoked for their protection and they were classed as “res sanctae” (things sacred).  It was a capital offence to harm them or even to climb over them to enter the city instead of coming through the gates in the proper way.

Different social forces and impulses affected the development of law everywhere.  Such forces varied from the legislative power of the dictator to the unidentified pressure of public opinion.  An illustration of the dictator’s power bringing a change in the law is of Emperor Claudius for his private purposes.  Desirous of marrying his brother’s daughter Aggrippina, he brought a change in the ‘law of incest’, permitting marriage between a niece and her uncle leaving the rest of the law relating to such prohibited marriages i.e. between uncles and nieces or aunts and nephews incestuous.

Therefore, Kenny (year) opined that, so long as crimes continue to be created by the government policy, it was difficult to give a true definition of the nature of crime.  Hence, he resorted to broadly describing a crime as he realized that it is nearly impossible to give a scientific definition of crime.  While doing so, he kept in view an all-important aspect of the matter i.e. “the controlling power of the state with regard to criminal prosecution is an undeniable fact”.  According to him “Crime” has the following three characteristics:

1. A crime is a harm brought about by human conduct, which the sovereign power in the state desires to prevent,
2. Among the measures of prevention there is threat of punishment,
3. Legal proceedings of special kind (criminal proceedings) are employed to decide whether the person accused did in fact cause the harm and is according to law to be held legally punishable for doing so.

• Crime Is A “Legal Wrong”:

Since no satisfactory definition of crime acceptable and applicable to all situations could be derived, penal statutes define, specifically, different criminal behaviors, which they purport to check.  Even the Criminal Code of FDRE, 2005, which has codified the great bulk of the criminal law of the country, does not give any standard definition of crime.  Art. 23(1) simply states that,

“A crime is an act which is prohibited and made punishable by law.

In this Code, an act consists of the commission of what is prohibited or omission of what is prescribed by law.”

This provision is nothing but a statement of fact, which is made for the purposes of the Code, and cannot be regarded as a definition of crime. It refers to the specific kinds of conduct prohibited under the Special Part of the Code.

‘Crime’ Distinguished From ‘Civil Wrongs’:

“Crimes” are said to be harms against the society and are therefore, considered as graver wrongs. “Torts” (cases of non-contractual liability) are wrongs against individuals and are treated as lesser wrongs. “Breaches of contract” are also civil wrongs, which result from non-performance of contractual obligation.

“Tort” is a private wrong and the remedy available is reparation for the injury suffered and not punishment.  “Breach of contract” entails civil liability of the defaulter that may result in forced (specific) performance, cancellation of the contract or payment of damages.  But unlike criminal law, the state will not be involved in the dispute or litigation other than legislating the legal framework that facilitates contractual transactions, providing remedies in case of non-performance and adjudicating over the case if the creditor files a suit.  Moreover, the remedies unlike criminal law do not involve punishment but performance of obligations and payment of damages.

There are several factors that distinguish torts from crimes.  However, torts also include certain harms or damages caused by fault that are designated as offences like assault, defamation, negligence etc.  But unlike criminal offences non-contractual liability may arise irrespective of fault (strict liability) or due to harm caused by others for whom a person is answerable (vicarious liability) as in the case of harm caused by one’s child, one’s employee in due course of his work, etc., Tortious liability is said to be “strict” (or irrespective of fault) in the following instances.

a)      If it arises from acts that do not constitute fault, or

b)      Due to harm caused by things owned or possessed by a person namely, animals, buildings, machines, and vehicles and manufactured goods.

Further, faults that result in tortious liability are wider in scope of application than offences, because in addition to offences the term “fault” for the purpose of “tortious liability” may include violations of private law (Art. 2035 ECC), Professional fault (Art. 2031, ECC) and other faults that are considered to be faults on the basis of the “standard of a reasonable man’s conduct under similar circumstances” (Art. 2030 ECC).  In short, criminal liability invariably requires moral guilt (intention or negligence) and personal act or omission while non-contractual liability doesn’t.

Another important difference lies in the fact that “analogy” is forbidden in criminal cases (Art. 2 (1), The Criminal Code, 2005), but may be permissible in Civil (i.e. contractual and tort) cases where legal provisions embody illustrative (rather than exhaustive) lists.  The distinction between the two also lies in the degree of certainty of evidence.  Criminal cases require certainty beyond reasonable doubt while the preponderance of evidence in the balance of probability suffices in civil cases.

In addition to these, the following are some more important legal aspects which distinguish these legal wrongs:

Nature of wrong:

Crime is a public wrong i.e. a harm done against the society. A ‘tort’ is a private wrong committed against an individual generally or the public in a given locality. A ‘breach of contract’ is committed when any term or condition of an agreement enforceable by law is violated by any one of the parties to the agreement. Therefore, this too is a private wrong committed against a specific individual.

Nature of the Right Violated:

In a crime and a tort there is a breach of ‘right in rem’ whereas in a breach of contract there is breach of ‘right in personum’.

Origin and Nature of the Duty:

In a crime the duty not to cause harm is fixed by the state. In tort such Duty is fixed generally by the operation of law where the law of non-contractual liability remains un-codified and by the state where it has been incorporated in codified law (Art.2035ECC).Under criminal law the duty is towards the whole world and it arises on account of the statutory enactments. In case of torts the duty is towards the public generally. Duty either arises on the basis of statutory enactments (Art.2035ECC) or on the basis of general responsibility towards the society and it is independent of any personal obligation under a contract. Whereas, in case of breach of contract the duty is fixed as a result of contractual relationship of the parties and the duty is specifically towards the contracting party. The duty is breached as the result of failure to perform contractual obligation.

Consent of the Victim:

Consent of the victim to the injury caused is a qualified defence in criminal law. (Art 70 Criminal Code). In torts, consent of the plaintiff to the alleged injury nullifies right to remedies. A contract it is founded upon consent. Therefore, if there is consent to the breach of any term or condition of the contract, the plaintiff forgoes his right to claim the remedies.

The Element of Intention:

Intention is an essential element of crime (Art.57 and 58 of Criminal Code).  Intention may form one of the ingredients of tort but not an essential precondition for the Tortious liability.  In an action for breach of contract whether the breach   was intentional, is an irrelevant question.

The Element of Negligence:

Negligence attended with criminal lack of foresight amounts to a crime (Art.59 Criminal Code). Mere negligence may amount to a tort (Art.2029 ECC). There is no question of negligence in an action for breach of the obligation arising out of a contract.

Relevancy of Motive:

Motive may be a factor for consideration in deciding the quantum of punishment in criminal liability. Motive is taken into consideration in deciding tortious liability. Motive is irrelevant (1717 ECC) in an action for breach of contract. A breach is a breach with whatever motive it was committed.

Initiation of Legal Proceedings:

Criminal proceedings are conducted in the name of the state. The state steps into the shoes of the victim as the protector of interests of its inhabitants. In case of the other two civil wrongs, it is the injured party that brings the action against the wrong-doer.

Remedies Available:

The criminal is punished by the state. The punishments may range from fine, compensation through imprisonment of different kinds to capital punishment. In torts the remedies available are damages, compensation, restitution and injunction. For breach of contract cancellation of contract, damages, specific performance and forced performance of contract are the available remedies.

All these distinctions show a difference in the legal proceedings, which are taken upon the commission of a wrong.  But they do not indicate any essential intrinsic difference in the nature of ‘crimes’ and ‘torts’.  Some times the same injury such as negligence, defamation, amulet etc, may fall under both the categories. Therefore, Kenny (year) rightly observes that, “in a way there is no distinction between crime and tort in as much as a tort harms an individual, where as crime is supposed to harm a society.  But then a society is made up of individuals, harm to an individual is ultimately harm to the society”. Writers on English legal history have often mentioned that in early law there was no clear distinction between criminal and civil offences. The two have been called ‘a viscous intermixture’, and it has been explained that the affinity between tort and crime is not the least surprising when we remember in the history of law how late in the history of law there emerged any clear conception of difference between them; this is more, not a peculiarity of the English system, as was pointed out by Maine (year). There is indeed no fundamental or inherent difference between a crime and a tort. Any conduct which harms an individual to some extent harms society, since society is made up of individuals; and therefore all that is true to say of crime that it is an offence against society, this does not distinguish crime from tort. The difference is one of degree only, and the early history of the common law shows how words which now suggest a real distinction began rather as symbols of emotion than as terms of scientific classification. Thus the word ‘felony’ originally indicated something cruel, fierce, wicked or base. As Maitland (year) says: ‘In general it is as bad a word a as you can give to man or thing, and it will stand equally well for many kinds of badness, for ferocity, cowardice, craft.’