An Introduction to Criminal Law - Universal Law

Introduction 

in this lesson what we're going to do is  take an  introduction to the concept

of criminal  law  and we're going to be talking less about  legal principles but

more about the  theoretical principles that underpin  the legal principles that we

will go on  to discuss later on 

Lesson Overview :

 so in this lesson specifically we're  going to

look at  really what criminal law is how do we  define criminal law how do we know

that  something is a crime  how is what is the criteria  for establishing something

as being a  crime  we're then going to look at the concepts  of criminalization

and justification for  criminalization  why is it that it's how is there a 

justification to criminalize some  acts and then we're going to look at the  distinction

between  a real and a regulatory crime  and the arguments for separating the two  you

know there are some arguments to  suggest that the two should be separated  so

let's begin 

What Is Criminal Law ?

by asking ourselves what  is criminal law  well ultimately the study of

criminal  law  is the study of the kind of things that  make up specific offenses  so

it also studies the underlying  principles by which these  offenses are

interpreted when we look at  criminal law we tend to  uh examine things like mins rear 

and actus race these kind of latin words  that underpin  principles of criminal

liability  and we we often describe and talk about  um things like mensdrea and actress 

rheas  almost vicariously through the lens of  specific crimes  so we talk about the

men's rear and the  actors race for things like you know  murder manslaughter etc

etc  criminal law isn't necessarily the study  of criminal procedure  or criminal

evidence these are still  tangentially related to criminal law  they are you know 

there is obviously some relation to um  the criminal law  but these are things that

make up um  entirely different courses on their own  the kind that the concept of

criminal  procedure and and  and the and the law of evidence are both  two pieces of 

of law that can have their own um set of  lessons  so they're not going to be

covered in  this course .

How Do We Know Somethings is a Crime ?

 so we understand that criminal law is  the kind of things

that make  is the study of the things that make up  criminal liability  and and

just the study of what makes  something a crime  so how do we know something

actually is  a crime  well in law there are two kinds of legal  procedure  you have a

criminal procedure and a  civil procedure  and to that extent there are you know  there

are by extension there are two  kinds of  um two kinds of of modes of  uh of modes

of of coming to different  legal conclusions  from a criminal perspective and

from a  civil perspective  in a criminal case there is a  specifically different

procedure that  takes place  and this is one way in which we can  delineate  crimes from

other things that take place  within law  this is one way we can know that 

something is a crime  so as williams in 1955 described it  a crime then becomes an act

that is  capable  of being followed by criminal  proceedings  so what he means here

is that  a crime is just anything that once a it  takes place  uh we can and then

enact criminal  proceedings against the individual that  that committed whatever it

is that took  place and that's how we can define crime  the question really is is

that a very  good definition because what we're doing  is defining crime by the

procedure that  takes place immediately after  whatever it is take whatever it is that 

happens  is that actually defining what a crime  is  it seems to be a very uh surface

level  approach it seems to be a very surface  level way of trying to  define crime

as just anything that  requires a criminal proceeding  it doesn't really tell us

anything about  actually what  is a crime what distinguishes a crime  from something

else  except for procedurally what is a crime .

Civil vs Criminal Cases :

so a response to that is that in

some  cases  you can have a particular act that can  be  wrong both through a civil

um  perspective and also through a criminal  perspective  so if we're going to

define a crime as  anything that uh it  follows um that a criminal procedure  then

follows  then by that extension how do we respond  to cases where  something can be

both civil wrong and  also a criminal wrong  take for example the act of assaulting

 someone  that can both be civil the person could  then sue  for damages and it

could also be a crime  it can also be criminal  so some note that there is a

difference  between civil and criminal illness in  this response  so a civil claim  is

one that is completely different in  nature to a criminal came for the  for the

case of a criminal claim  an action is criminal because uh  it is an action that is

uh takes place  between the state and a private  individual  by contrast a civil

case is one between  two private parties  or more two or more private parties  so

in a criminal case the victim of the  crime  is placed away from the proceedings 

and the state steps in so in a civil  case  if someone was to assault you and you 

wanted to sue for damages  that is your choice you have the choice  to sue for

damages  and and and then you become the claimant  within that within that civil

within  that civil case  in a criminal case things are very  different the victim 

isn't the one that's bringing bringing  forth action  against the individual that

committed um  the offense  the the the person or the individual or  the thing that is

giving  that is bringing a claim against the  individual who's committing an offense 

is the state the state is involved  and the victim plays takes a backseat 

approach  okay this um almost removes a certain  amount of agency from the victim  in a

criminal case and the kind of  agency that doesn't actually exist in a  criminal case

as does a civil case  generally a victim in a criminal case  uh they have reduced

that of a witness  so they are they are called as a witness  so this is one way in

which we can  define the distinction between crimes  and criminal cases from that of

of civil  cases  .

Public Wrong :

another way we can look at it is ask  ourselves the question of

whether or not  a crime  can be described as a quote public wrong  okay it's a very

interesting question  beyond being  a wrongdoing to a particular victim to a  particular

person  so for example if um x  if x if a particular person wants to  murder somebody

else well we know that  a wrong has been done to that particular  person they have

been murdered  but can we define crimes more broadly as  something that is wrong 

from a pub a public wrong wrong to the  public  so blackstone argues that  besides

the injury done to individuals  crimes strike  at the very being of society and

this is  a  and this is an implication of  representing crimes  as a public wrong

one can  define crimes as wrong that are not just  directed to the victim but also

 wrong because they impact the public as  a whole  and by that we mean that if

crimes are  left without any kind of punishment  then society would not be able to 

persist  so it's not just wrong to the particular  person who has been murdered  okay

it is also a wrong to society  because if we were to  not uh bring about criminal

proceedings  against that individual  then or any individuals that committed  murder  then

a society would not be able to  persist a  a fully functioning society cannot

exist  when we have crimes being committed  without due process without any kind of 

punishment taking place  so this implies that crimes are at least  somewhat public wrongs

 they are wrongs that strike at the heart  of society not  just a particular

person  they also concern the public as a as a  whole since society would suffer if 

crimes go unpunished .

Criminalization :

and this brings us into the question of  criminalization 

criminalization is obviously a heavy  philosophical topic  just like everything else we've

talked  about in this lesson  what does it mean to criminalize a  particular conduct 

so criminalization involves a  prohibition  so it is involving if we are to 

criminalize a certain act  we are setting out a set of rules  relating  to a thing that

should not be done  so if we criminalize something like you  know murder we use the

most  you know the heaviest example we are  setting out a set of rules okay that's 

that tellers that inform our actions  they tell us that we cannot  perform these

things there is a  prohibition of these things  the criminal law prohibits one from

say  shoplifting as well that is an act that  is criminalized  if someone

transgresses and does commit  the prohibited act  then a process is set in place to 

convict the criminal  to convict the individual  and so this is the concept of 

criminalization  we have a it's it's it exists along two  planes we have  the process of

prohibition of a  particular act  and we also have a conviction process  that takes place 

if one was to transgress this particular  act  and then once uh convicted we have

the  third stage  which is the punishment of the  individual just don't forget 

that when we talk about criminal law and  criminal procedure  something that's

again tangentially  related  we have an act that takes place we then  have a 

process in place to try the the  the person who committed the act and  then to convict

them  you know and and then to find them  guilty of the particular act  once uh or

not guilty if that may be the  case  and then once found guilty um once we  have

conviction  we then the criminal law then sets out  the punishment of the said individual

Criminal Punishment :

 now this punishment can exist in a  variation of forms  again uh criminal

punishment is also a a  different kind of question  um that is tangentially related to 

criminal law we have  things that can go from anywhere from  fines and community

service and things  like that  all the way up to imprisonment arguably  imprisonment

is the  obviously the heaviest um  punishment that one can receive because  we

don't have any kind of capital  punishment these days  and there is also the

expectation  that when we have punishment and we  put punishment in place the state 

enforces a punishment against an  individual who has committed an offense  there is

also the expectation that the  punishment be proportional to the  seriousness of

the conduct  ashworth notes that the determination of  serious seriousness  should

be a very important factor in the  implementation of criminal law  he suggests

that in principle the  criminal law  should not be used against quote  non-serious

wrongs  this is in his um an article written  in 2000 called is criminal law a lost 

cause  and really what we are getting at here  is the um proportionality  should be

something that is very  important so for  example if one  was to commit a a rather minor

offense  so for example like a uh you know a a  road trafficker  offense or something

something like  speeding  then there is the expectation that the  punishment for that

offence  is proportional to the offence itself  now you wouldn't uh expect in a 

reasonable society  that somebody who commits a minor crime  uh you know a minor offense

be sentenced  to the most uh extreme punishment things  like uh  you know 25

years imprisonment equally  you wouldn't expect the inverse to be  true somebody who

 um is convicted of murder would not be  there would not be the expectation

that  they would only receive  a fine for for for that for that uh  offense there

has to be a certain level  of proportionality  and this brings us on to ashworth

um  specifically because as worth did  suggest that  there is ways in which we

should be able  to justify the use of the criminal law  the criminal law should not

just be used  arbitrarily there should be a certain  set of criteria  that we can

use to justify um  criminalization .

Ashworth :

and there's really five key  factors that are

at place that the  ashworth knows  the first one is is the behavior  sufficiently

 serious to merit intervention from the  criminal law  now from a philosophical

perspective  some people argue  that something should be a crime because  it causes harm

to an individual or  or a set of individuals etc however  the counter argument

against that is we  have a number of things  in society that are perfectly legal and 

perfectly fine to do  okay that are nonetheless  uh harmful to an individual  or

nonetheless are immoral this also  brings into question the concept of  legal moralism  is

crime is the criminal law supposed to  be a reflection on societal morality  because

in that case would we be able to  um  criminalize punish people from using the 

criminal law  for for example uh cheating on their  significant other  if that is a

case that we could um you  know we're not without getting into the  weeds of

philosophy here  is arguably a very immoral thing to do  but is it sufficiently serious

enough to  merit  intervention from the criminal law so  that's a the question for 

for philosophers out there  second point is could the act be dealt  with under any

 existing legislation so before we start  to think about criminalizing  uh

something else we start to create new  crimes for  for people to um have to follow 

could we deal with this act in any other  kind of legislation or any other kind of 

regulation or any other kind of way  is there another way in which we can  prevent this

act from from taking place  without having to intervene with the  criminal law 

the third point is is the crime  enforceable  because there is the argument to be

had  that in some cases that  something can be a crime but it's so  difficult to

enforce  that it's basically ineffective it  becomes no  it becomes pointless to even

you know  criminalize an act  that become that is so impossible to to  to enforce

some people from a political  perspective  arguably have made the argument that 

the coveted restrictions and the  lockdowns  okay were unenforceable  and i guess

to an extent in some cases  they might be  because it's i mean we've all been in 

the situation where it's very  you could arguably suggest that um it's  very

difficult  to enforce a crime such as  breaking lockdown regulations even in 

specifically  if we're talking especially in like very  minor cases  so obviously this is

something that  has to be taken into consideration if  there's something that is  um

that you would want it to be a crime  but it would be impossible to enforce  upon

everybody  then it becomes impossible to it becomes  impossible to  justify

criminalizing that behavior the  fourth point is can one clearly define  and prescribe the

exact conduct that  ought to be  criminalized there's no point in  trying to

criminalize something and  trying to define  a crime in a very vague wishy-washy kind  of

way  because that's not going to help anybody  how can people  be rationally and

reasonably expected to  follow a particular code of conduct  specifically the criminal

law if they  cannot  you know if it's actually vague what  they are supposed to be

doing  so you have to be able to clearly define  and prescribe the conduct that

ought to  be criminalized  and then the final one which we have  talked about

already is  is the punishment proportional to the  seriousness of the offense  if we

can if we can check  yes to all of these five points  then we have a justification

to  criminalize a certain act  this is according to ashworth  finally i want to

touch on the concept  of real versus regulatory crimes  in some cases criminal

liability is  imposed by parliament  not as a mean to as a means general not  as like 

that the goal isn't to catch criminals  except for example but generally as a 

means of regulating  activity so in these cases they are  often aimed at  avoiding

harm rather than punishing  harm that has already been caused  so a very good

example of this is health  and safety legislation  the purpose of health and safety 

legislation is to try and direct  societal behavior in a way that avoids  harm to try and

regulate behavior to  avoid  a harm that has caused um as a result of  that  however

despite the aim of regulating  behavior and trying to prevent harm  they still may

incur real penalties and  punishment if breached  which is why we would define them

as  regulatory crimes  and this brings about another  theoretical question should

the criminal  be  should the criminal law be used in the  way that lumps

regulations  in with real crimes such as rape and  murder  because you've arguably got a

disparity  here  health and safety legislation is  generally just  there to try and

regulate people's  behavior in a way to  you know be better safe and to prevent  as

much harm as possible  is it really fair is it really necessary  to lump that kind

of  regulatory crime in with a much more  serious crime such as rape or murder 

well obviously the concept of the  criminal law  has to exist uh on a on a spectrum

of  seriousness  because even if we take out regulatory  crimes  we can still

think of crimes that are  definitely less serious than rape or  murder  that still

exist along the same plane as  as  those serious crimes.

Conclusion

so in conclusion to everything that  we've come to in this lesson what we've  done is introduced the concept

of  criminal law  try to define it in a way that you know  in an at least 

acceptable way i've tried to give a  number of different perspectives from a 

philosophical  um from a philosophical perspective in a  theoretical perspective  we've

looked at how we can define  criminal law and how we can define  crimes more

specifically  we've then examined some of the  philosophical issues around the concept  of

criminalization and justification for  criminalization how we justify  making a particular act

criminal  and we then we've also finally looked on  um the concept of real versus

regulatory  crimes  and then in the next lesson what we're  going to do is talk a little

bit more  about  the some of the a number of other little  key philosophical

underpinnings before  we start  beginning the uh process of examining  the concepts  of what

makes uh what what  is required legally to bring about an  action that is criminal 

in criminal liability  .

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