In the UK, as in much of the world, the idea of breaking the law is closely aligned with the idea of committing a crime. However, crimes in truth only result from breaches in criminal law, a defined and restricted area of law which is looked at further in this two part article.
Criminal law can generally be thought of as the law of the land or the law of the state. That is, it refers to the laws that the state puts down in writing, legislature, to protect itself and its citizens. As a result, a breach in criminal law will result in a case being brought by the state (in the UK, the crown prosecution) against the accused offender.
It is helpful to consider criminal law in contrast to civil law, where cases are brought by individual parties against other parties, and which is based on a common law (or case law) framework where the law is not defined in legislature but instead cases are settled in accordance with precedents set elsewhere in the judicial system.
In criminal law a breach which leads to a conviction will, generally speaking, result in a punishment for the offender. These punishments will have a number of aims including one or more of the following:
Retribution - inflicting hardship on the offender to reflect the hardship they inflicted on their victim.
Deterrence - of the offender from committing further crimes as well as other potential offenders
Incapacitation - of the offender to prevent them committing further crimes
Rehabilitation - of the offender so that they can add value to society and to prevent further crimes
Restitution - to restore the legal status of the victim, as is the aim of civil law (see below)
These aims are not mutually exclusive. Incarceration as a punishment, for example, may fulfill the first three and, depending on the nature of their time in prison, the fourth as well.
The aim of retribution for retribution's sake is less popular now despite being key to the development of criminal law down the ages. It originated from a concept similar to restitution but with the aim of restoring a universal balance where the offender should suffer the equivalent consequences as experienced by the victim. This lead to the establishment of institutions to restore this balance, to determine, formalise and measure out the retribution rather than allow personal retributions (vendettas, revenge) within a society which may have gone beyond the scale of the original offence.
The earliest forms of criminal law therefore followed the lines of lex talionis (a punishment to fit a crime) otherwise referred to as ‘an eye for an eye’ (after a passage in the Old Testament/Torah). However, the ideas of ‘turning the other cheek’ from the New Testament and more generally that ‘two wrongs don’t make a right’ (‘an eye for an eye leaves everyone blind’) have tempered this philosophy, particularly in the west.
The similar concept of restitution is still the aim of civil law; similar except that civil law aims to restore the legal status of the ‘victim’ as if the offence hadn’t happened regardless of whether that acts as a punishment and/or deterrent and instead of aiming to restore universal balance.
The second part of this article looks at the key concepts that define a crime and criminal law including those of actus reus and mens rea. However for those looking for further advice on criminal or civil law proceedings they should seek professional advice from qualified criminal law solicitors or, for example, family law specialists respectively.
© Stuart Mitchell 2012
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