The first step in the algorithm of the criminal law process, is criminalization. What behaviors, acts and who are criminalized, depends on the people in power.
Some words and ideas are so taken for granted, that if we were but to pause for a moment, we would be astounded at our own stupidity. One of those oft quoted, yet under-questioned words and idea is crime.
First, the word 'crime' itself is of rather modern origin. It was first used in the 13th century to denote 'sin' or infractions against the laws of god.
The way people referred to the "concept of crime" before that time was: "wrongs".
Because we believe we don't have to rethink old principles that previous generations have taken care of; and because violence takes such a toll on victims and witnesses, it is easy to understand the tendency to ignore deeper questions on the issue. A man has killed. A man must be punished. We leave it at that.
And though killing can be considered the extreme edge of a wrong one person may do to another – it does not define the center, clarify the context, or even tell us what the concept is.
'Wrongs' in Pre-Political Societies
One could argue that there are other wrongs one person may do to another, that are equivalent if not worse than killing a man. Like killing his family; destroying his means of livelihood forever; stranding him in the middle of nowhere with no means of getting out, no food, or ability to make tools, thereby condemning him to a slow, painful and lingering decay.
One understands this instinctively. "A fate worse than death" is a phrase that exists in many languages. This is how pre-political societies – those that hadn’t yet gathered a power structure – worked.
They decided what they considered acceptable or unacceptable behavior in their community, depending on the specific needs of their geography and life at that particular time. Stealing a man’s horse was a hanging offense where homes and towns were hundreds of miles apart and a horse the only means of travel. A stolen horse meant being stranded for months, with no supplies, exposure to roving bands of thieves and bandits, and near certain death. The punishment was commensurate.
Burning a man’s farm down would be a similar offense in another society where the seasonal crop yield fed the family for the whole year.
Before the advent of modern states, the behaviors and actions that were considered grievous wrongs, and the punishments they merited, first depended on the society itself, and then began to be dependent on its evolving power structures.
Notions of 'sin', drawn from respective religions added to the cornucopia of prohibitions and punishments for centuries. Witch burnings; public stoning, hanging and guillotining of adulterers, blasphemers and treasonous subjects; and the branding of slaves, right up to the middle of the last century - the branding of Jews, are just a few examples that come to mind.
'Wrongs' in Organizing & Organized Societies
As communities organized into larger conglomerates, the attempt, mostly, was to reform the eccentric, whimsical and often harsh nature of customary law, from which no appeal could be made - to something more widely acceptable. But how ideas of what societies considered ‘wrong’ or ‘sinful’ turned into crimes, is too long a story for this short introduction.
Suffice to stay that by the time we arrived at the division between civil law and criminal law, much had changed.
So much, in fact, that by 2018 a five judge Indian Supreme Court bench could not come up with a definition for crime itself.
(Joseph Shine v Union of India, 2019CriLJ1; Coram: Dipak Misra, C.J.I., A.M. Khanwilkar, Indu Malhotra, Rohinton Fali Nariman and Dr. D.Y. Chandrachud, JJ.)
Despite the typical verbosity of a Dipak Misra essay, the judgement itself was a welcome one – it decriminalized adultery and received high praise.
But for me, it also gave rise to two interesting questions:
Why was adultery criminalized in the first place and by whom?
And how does one define a crime in a modern nation anyway?
The Joseph Shine Judgement’s eye-opening value to me, was the understanding that there is actually no real definition of crime. For once, Justice Misra’s verbosity was useful. I will reproduce his full quotes in a related Also Read post, but here’s the best definition he presented: (para 46, p49)
"Blackstone, while discussing the general nature of crime, has defined crime thus:
A crime, or misdemeanor, is an act committed or omitted, in violation of a public law, either forbidding or commanding it. This general definition comprehends both crimes and misdemeanors; which, properly speaking, are mere synonym terms: though, in common usage, the word "crimes" is made to denote such offences as are of a deeper and more atrocious dye; while smaller faults, and omissions of less consequence, are comprised under the gentler name of "misdemeanors" only. (para 46, p49)"
(William Blackstone had written his Commentaries in the 18th century and frankly, as far as definitions go, there has been little been improvement since then).
Anyway, every definition of crime, boils down to this:
– A Crime is something done, or not done, in violation of a law.
The Algorithm of Criminal Law
Here's the implication of that definition.
The first step in the algorithm of a criminal law process, is criminalization.
α has to be decreed a crime.
π has to be assigned as a punishing consequence to α
Person P, found to be α-ing must risk being π-ed
Thankfully, some American jurists still distinguish between malum in se & malum prohibitum.
Malum in se acts are “wrong in themselves,” whether criminalized or not, because they violate some basic human principles. These are crimes like murder, rape, child abuse and theft etc. But, in malum in se acts, there must be an intent to commit these crimes and the intent must be proven (mens rea must be proved.)
See the above link for why Intent is important in Malum in se crimes, but briefly: is it really murder if you're crossing the road and an old lady suddenly stops the car, bumps her head on the steering wheel and dies? Was there an intent to kill her in this manner?
On the other hand, Malum prohibitum, are acts like α. Deemed crimes, assigned a punishment π and imposed Wily Nily.
That is how adultery came to be a crime. And abortion, homosexuality, beef eating, drinking every now-and-again, smoking, polygamy, polyandry, carrying guns in India to defend yourself, not standing up to sing the national-anthem before a movie.
At some point, all these behaviors offended the morality of people powerful enough to first prohibit them, then criminalize them. But always in the name of reform. The intent is always – for the good of society. Which is such a delicious irony.
The point of the whole thing is that we in India, have always confused legality for morality. and vice versa.
Conversely, we’ve also assumed that whatever offends our personal moralities deserves to be turned into public law.
Both are false premises.
The second premise turns us into bigots. The first makes us gullible fools, obedient to government-made laws, and always in a state of appeal to higher authorities to either solve our problems or get rid of whoever currently offends us.
Together, they make us prime political fodder. Washed and dried and ready to light up on cue.
Ends
Note:
For too long, have we been focused on crime and punishment. Perhaps it's time to focus on crime and criminalization. Why are so many regular things criminalized? The better to control you with my dear, said the big bad wolf.
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