For a proper appreciation of the distinction between criminal law, civil law and morality, it is necessary to understand the “concept of wrongs” and their classification.

A wrong is an act forbidden by the society. In other words, it is a violation of rules, which are accepted by the society.  Society prohibits certain activities basing on the general conscience of the society, which is found in the values and norms of the society.  The concept of morality explains the values of a particular society.  This means that a given society declares certain acts, which offend the moral conscience of that society as forbidden. These forbidden acts can be described as moral wrongs. However, All moral wrongs are not wrongs in the legal sense.

Since all violations of law cannot be characterized as crimes, there is a necessity to identify the particular class of violations or forbidden acts or wrongs, to understand the concept of crime.  Therefore, we shall proceed to broadly classify the body of wrongs.

Classification of Wrongs:

Since all violations of law cannot be characterized as crimes, there is a necessity to identify the particular class of violations or forbidden acts or wrongs for the purpose of defining what ‘crime’ is.

Wrongs

(Acts forbidden by the Society)

Moral wrongs              Legal Wrongs

(Interference of law is considered              (where the interference of law is necessary)

unnecessary)

Civil wrongs          Criminal wrongs

(Law interferes at the     (State as a matter of right  interferes in most of the cases)

instance of the injured party)

ü  Moral wrong:

This is a wider term including a wide range of reprehensible acts, which tend to reduce human happiness.  There is a long list of such acts including ingratitude, hard-heartedness, absence of natural love and affection, habitual idleness, sensuality, pride and all such sinful thoughts.  Such acts are called wrongs and are looked upon with disapprobation. The evil tendencies of these anti-social acts widely differ in degree and scope. Some of these wrongs such as lies, refusal to give a morsel of food to save a fellow human being, omission on the part of a swimmer to rescue a man from drowning, etc., are not considered sufficiently serious for the notice of law and are merely disapproved. These acts are considered as moral or ethical wrongs and are checked to a great extent by social and religious laws. Sinful thoughts and dispositions of mind might be the subject of confession and penance but not of criminal proceeding.

ü  Legal Wrong:

The category of wrongs such as nuisance, deceit, libel (defamation in visual form) robbery, dacoity, murder, rape, kidnapping, etc., are considered to be sufficiently serious for legal action. The state may respond to any of such acts in two different ways: (1) Where the state takes action against the wrong-doer at the instance of the injured party, it is called the civil wrong, and (2) Where the state by itself proceeds against the wrong-doer, the wrong is referred to as criminal wrong.

• Civil Wrong:

Where the magnitude of injury is supposed to be more concentrated on the individual, the state, at the instance of the injured individual or the group, directs the wrong doer to compensate the injured in terms of money as in the case of deceit, libel, nuisance, negligence, etc. This type of wrong is called civil wrong or Tort, for which civil remedy is open to the injured.

• Criminal Wrong:

Where the gravity of the injury is more directed to the public at large (including the specific victim), the state by itself can take a direct action against the wrong-doer. In this instance public condemnation or provision for compensation is ineffective as in the case of moral or civil wrong. Wrongs, like dacoity, murder, kidnapping, sedition, treason and the like, disturb the very fabric of law and order and jeopardize the state’s existence or create a wide spread panic. Therefore, the state stresses the necessity of punishing the wrong-doer rather than concerning itself with the question of payment of compensation to the injured party by the wrong-doer. This category of wrongs is called as “public wrongs” or “crimes” for which criminal proceedings are instituted by the state and the culprit is punished.

• Relation between Morality and Criminal Law:

Though morality and law can be precisely distinguished, they are not totally distinct phenomena. They are related to each other in that they both aim at maintaining social order. There is a category of wrongs towards which law and morality react with common hatred. They are offences like murder, rape, arson, robbery, theft, etc. Law and morals powerfully support and greatly intensify each other in this matter. Everything that is regarded as enhancing the moral guilt of a particular offence is recognized as a reason for increasing the severity of the punishment awarded to it.

Sir Stephen year stated, “the sentence of the law is to the moral sentiment of the public in relation to any offence what a seal is to hot wax”. When a member of the society does a wrong involving serious moral guilt, the moral sentiment of the society gets offended so seriously that the whole society waits in all its eagerness to see that the offender is punished severely. This general disapprobation excited against the wrong doer may pass away with time.  But the fact that he has been convicted and punished as a “thief” or “murderer” or “cheat” or “rapist” stamps a mark upon him for life.  Thus the moral sentiment of the public gets converted into a permanent final judgment what might otherwise be a transient sentiment.

Thus, according to the author the criminal law proceeds upon the principle that “it is morally right to hate criminals and it confirms and justifies that sentiment by inflicting upon criminals punishments which express it.”  However, the recent tendency of the reformists is on the opposite lines, they say “hate the crime not the criminal” basing their argument on the Gandhian philosophy i.e. “hate the sin not the sinner”, because a criminal is not born, he is made. Different circumstances and experiences after his birth in the society become responsible for his becoming a criminal.  Thus, today the “Reformative Justice” is the philosophy of the state.

Cohen, in his article “Moral Aspects of the Criminal Law” (49 Yale L.J.989-990 (1940) observes “ …… what I wish to insist on is that the criminal law is an integral part of the legal system and is subject to same considerations which do and should influence the whole. More specifically, the criminal law cannot be distinguished from the rest by any   difference of moral principle. Some crimes, to be sure, are shocking; but there are many crimes that are felt to be much less reprehensible than many outrageous forms of injustice, cruelty or fraud, which the law does not punish at all, or else makes their perpetrator liable to money damages in a civil suit….”

 

The definition of a crime has always been regarded as a matter of great difficulty. Where the task of definition is difficult, it is advisable that a student should not address himself to it until he has acquired some considerable knowledge of the subject matter to be defined. Therefore, before making an attempt to understand the definition of crime, we shall endeavor to have some basic information relating to crime and criminal law.

“Crime” is an offence committed by an individual who is a basic unit of a society.  Therefore, study of crime i.e. Criminal Science” is a social study. The main aims of Criminal Science are:

To discover the causes of criminality,

To devise the most effective methods of reducing the amount of criminality,

To perfect the machinery for dealing with criminals

Based on these three objectives, three main branches of Criminal Science have developed.  They are:

1.  Criminology:  It is the study of crime and criminal punishment as social phenomena. This branch of criminal science is concerned with causes of crimes and comprises of two different branches.

a) Criminal Biology:  This investigates causes of criminality, which may be found in the mental or physical constitution of the delinquent himself such as hereditary tendencies and physical defects.

b) Criminal Sociology:  This deals with enquiries into the effects of environment as a cause of criminality. This branch focuses on the objective factors like social, political and economic conditions leading to criminality, also termed as criminal anthropology.

2.  Criminal Policy or Penology: This branch of Criminal Science is concerned with limiting harmful conduct in society.  It makes use of the information provided by Criminology.  Therefore, the subjects of Criminal policy for investigation are:

a)       The appropriate measures of social organization for preventing harmful activities,

b)    The treatment to be given to those who have caused harm, whether the offenders are to be given warnings, supervised probation, medical treatment, or more serious deprivations of life or liberty, such as imprisonment or capital punishment.

This branch of study is also termed as ‘Penology’ and deals with treatment, prevention and control of crimes.

3.  Criminal Law: The Criminal Policies postulated by the above twin sister-branches i.e. Criminology and Penology, are implemented through the instrumentality of ‘Criminal law’.  In other words, criminal policies are implemented through the agency of criminal law.  The criminal law decides the special sanctions appropriate in each case.  These sanctions range from death penalty through various kinds of degrees of deprivation of liberty, down to such measures as medical treatment, supervision as in probation, fines and mere warnings (admonishment).

Branches of Criminal law: Criminal law in its wider sense consists of two branches.

a)      Substantive Criminal Law,

b)      Adjective/Procedural Criminal law

‘The Substantive Criminal law’ lays down the principles of criminal liability, defines offences and prescribes punishments for the same.  The Ethiopian Criminal Code does this business.  However, the substantive criminal law by its very nature cannot be self-operative.  A person committing a crime is not automatically stigmatized and punished.  At the same time, generally, a criminal would not be interested in confessing his guilt and receiving the punishment.  It is for this reason that ‘Procedural Criminal law’ has been designed to look after the process of the administration and enforcement of the substantive criminal law.  In the absence of procedural criminal Law, the substantive criminal Law would be almost worthless.  because without the enforcement mechanism the threat of punishment held out to the lawbreakers by the substantive criminal law would remain empty in practice.  Thus, the procedural criminal law is to administer the substantive criminal law and give enforcement to it.  The scope of our study i.e. ‘Criminal law’ falls under the branch of substantive criminal Law.

 

Nature and Scope of Criminal Law

 

Laws can be classified into different branches.  For instance, Civil law spells out the duties that exist between persons or between citizens and their government, excluding the duty not to commit crimes, Contract law for example is a part of civil law. The whole body of tort law or the law relating to Extra Contractual Liability, which deals with the infringement by one person on the legally recognized right of another, is also an area of civil law. Criminal law has to do with crimes, which are different from other wrongful acts such as torts and breaches of contract. The distinct nature of Criminal Law can be understood by defining some of its unique features.  According to Edwin Sutherland, Criminal Law of a place can be defined as “a body of special rules regulating human conduct promulgated by state and uniformly applicable to all classes to which it refers and is enforced by punishment.”  It means the whole body of criminal law to be efficient must have four important elements, viz.,

• Politicality,
• Specificity,
• Uniformity, and
• Penal sanction

Politicality implies that only the violations of rules made by the state are regarded as crimes.  Specificity of criminal law connotes that it strictly defines the act to be treated as crime.   In other words, the provisions of criminal law should be stated in specific terms.  Uniformity of criminal law implies its uniform application to all alike without any discrimination, thus imparting even-handed justice to all alike. The idea is to eliminate judicial discretion in the field of administration of criminal justice.  It may, however, be noted that the recent legislations provide scope for more and more judicial discretion through judicial equity to attain criminal’s reformation which is the ultimate goal of criminal justice. Finally, it is through ‘Penal sanctions’ imposed under the criminal law that the members of society are deterred from committing crimes.  It is, therefore, obvious that no law can be effective without adequate penal sanctions.

 

General Objectives of Criminal Law:

The objectives of Criminal law are the protection of persons and property, the deterrence of criminal behavior, the punishment of criminal activity and rehabilitation of the criminal.

a. Protection of Persons and Property:

Safety and a sense of security are the most important things for the survival of any society.  Safety of a society includes personal safety i.e. safety of life and liberty and safety of property.  To ensure safety there is the necessity of maintaining peace and order.  This is possible only by an effective penal system, which is strong enough to deal with the violators of the law and enable the people to live peacefully and without fear of injury to their lives and property.  Thus, the prime objective of criminal law is protection of the public by maintenance of law and order.

“Tort law”, a branch of civil law, also protects persons and property.  The difference between tort law and criminal law is that tort law results in money damages, whereas criminal law results in loss of freedom by sending a person to jail or prison.  Private interests are served through the awarding of damages.  The public interests are served by punishing criminal activity. If all persons respected everyone else’s person or property, there would be very little reason for criminal law.

b. Deterrence of Criminal Behavior:

A key to the hoped-for reduction in criminal behavior is that our criminal laws present a sufficient deterrent to antisocial behavior.  A “deterrent” is a danger, difficulty or other consideration that stops or prevents a person from acting.  The presumption inherent in criminal law is that if we make the punishment sufficiently harsh, persons who might do something criminal are prevented from doing so because they fear punishment.  If enough people fear punishment, there will be considerable reduction in criminal activity.

However, our Constitution states in Art. 18 that, there shall be no cruel and unusual punishment.  Certainly if our laws allowed the death penalty for even minor offences, there would probably be fewer minor offences.  But is that just?  To lose one’s life for stealing a loaf of bread seems too high a price to pay for fewer loaves of bread being stolen.  The problem is to decide how much punishment will deter criminal behavior without going too far.

c.   Punishment of Criminal Activity:

Since we will most likely be unable to deter all criminal activity, our laws accept that a certain level of criminal activity will exist in society.  Accordingly, we punish criminal activity for punishment’s sake.  If a criminal takes something without paying for it or injures other without a justification, the criminal law makes that individual pay for it through deprivation of liberty for a period of time.

d. Rehabilitation of the Criminal:

Once convicted, a criminal will begin to serve a sentence in a prison.  But that is not where our criminal justice system ends.  Our government has designed various programs to educate and train criminals in legitimate occupations during the period of incarceration.  Upon release, therefore, there should be no reason to return to a life of crime.  Sometimes a sentence is suspended (Arts. 190-210 of the Criminal Code); that is, it is not put into effect.  In such cases, the court supervises the individuals’ activities to ensure that they have learned from their mistakes.

The specific purpose and function of Criminal Law are clearly stated in Art. 1 of the Criminal Code of the Federal Democratic Republic of Ethiopia, 2004.  Art. 1. Para 1 sets out the purpose of criminal law (Code) as follows:

“The purpose of the Criminal Code of Federal Democratic Republic of Ethiopia is to ensure order, peace and the security of the state, its peoples, and its inhabitants for the public good”.

‘Purpose’ can be defined as the ultimate objective to be attained.  The above provision embodies ensuring order, peace and security of the state and the people of the country as its ultimate end to be achieved.  The second paragraph of Art. 1 proceeds to state the type of activities it aims to take up in order to achieve the purpose mentioned in the first para.  Art. 1 Para 2 lays down that:

“It aims at the prevention of crimes by giving due notice of the crimes and penalties prescribed by law and should this be ineffective by providing for punishment of criminals in order to deter them from committing another crime and make them a lesson to others, or by providing for their reform and measures to prevent the commission of further crimes.”

This paragraph states “What” the function of criminal law is … it is a prevention crime. It also states “How” the Criminal Code undertakes this function i.e. the methods adopted in performing this function, they are_

• Giving due notice of the crimes and penalties prescribed by the law.
• If such declaration of the punishable acts does not deter people from committing of crimes then the following methods are employed to deal with the criminals:

a)      Provide for punishment and reform of criminals, and

b)      Provide for measures to prevent the commission of further crimes.

Therefore, the function of a thing is ‘what it is meant to actually do’ towards a certain purpose.  Function is thus a special activity or task while purpose is the ultimate objective to be achieved.  Therefore, it follows that the Criminal Code of Ethiopia endeavors to achieve the purpose of “ensuring order, peace and security of the state and its inhabitants for the public good” through declaration of forbidden conduct, providing for suitable punishment, reform of criminals and preventive measures to control the commission of crimes.