Defining ‘criminal law’ and ‘crime’
Jeremy Bentham once described how crimes operate with an analogy:
When your dog does anything you want to break him of, you wait till he does it and then beat him. This is the way you make laws for your dog, and this is the way judges make laws for you and me.
The criminal law seeks to punish unwanted behaviour. Made up of thousands of laws (known as ‘crimes’ or ‘criminal offences’), the criminal law can be distinguished from that of tort law or contract law by its safeguarded procedures (different courts, different burden of proof, different consequences). According to Simester and Sullivan, there are three functions of criminal law: to criminalise unacceptable behaviour; to convict offenders for committing crimes and then to punish those offenders. This state-enforced system of threats is very different to the individually enforced civil law.
Crimes are based on a number of different principles, as illustrated by Ashworth and Horder. The harm principle suggests that behaviour should be criminalised if it risks harming others (such as murder); the welfare principle suggests that behaviour should be criminalised if it could damage the wider community (such as not paying taxes), and the minimalist principle suggests that behaviour should only be criminalised if there is no better way to address the behaviour in question.
Crimes should not be said to be based on morals, as this would lead to questions such as ‘whose morals’ and ‘what moral standard’, however there is no doubt that the criminal law often attempts to reflect what is acceptable and what is not in society...
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