Crime and morality*
Criminal
law is absolutely essential in a society for maintaining law and order.
Criminal law has to be strong enough both in its contents as well as in its
implementation, without being oppressive. It is an interest in the general safety,
long recognized legally in the maxim that the safety of the people is the
highest law.[1] The
central core of criminal law in rights of persons –not rights of social order,
and not welfare of criminal.[2] The
criminal law must identify which conduct should be brought within its ambit. On
what basis this decision is to be made.
Criminal law and morality.
Natural law roots lies
in the realm of ethics. There have been different doctrines of natural law at
different points of time having common principle that, there are objective
moral principals which can be discovered by human reason.[3]
‘Lex injusta non est lex’ doctrine says man made laws which conflict these
principles are not valid laws.[4]
Law should prohibit conduct simply because it is immoral. Undoubtedly Obedience
to law is moral concept and grand norm of every legal system which is not
absolute but conditional. The world ‘morality’ and all other associated or
nearly synonymous terms like ‘ethics’, have their own area of vagueness or
‘open texture’.[5] There
are certain forms of principles which some would rank as moral and which others
would not. Content of natural law are not precise because they based on value
which requires analysis and interpretation and
difficult to resolve whose interpretation as to moral values to be
accepted. Translating such moral principles into specific code is hilarious
task of legislators and some time is difficult to achieve it.
Positive school of
thought believes in the laws of human being
than laws of God. Permitting each individual to interpret the law
according to his own moral principles result in to virtual anarchy in the
society. That’s why the various authors
of legal positivism does not recognize
existence of law necessarily connected with morality. The existence of
law one thing: its merit and demerit another said by Austin .[6]
Natural law belief that, ‘IS’ reducible from ‘OUGHT’ is very simple fallacy.[7]
Under this school Crime necessarily creation of sovereign consisting of those
acts which are specially prohibited by criminal law under threat of punishment.
Merit of this school lies in its precision, its knowability and its
predictability which are contrast to Natural law’s vagueness and uncertainty.[8]
Another added advantage is practicable application of law to the society of diverse races, religions, classes
and cultures.
Separation of law from
morality for the sake of certainty has inherent danger of its abuse leads to
absolutism which is likely to cause great injustice to the people. Nazi regime
under the great Hitler rule penetrated horrible injustice, torture and death of
innocent people in the name of famous
positivist slogan ‘Law is Law’[Gesetz als Gesetz].[9]Germany
naturalist Gustav Radbruch was positivist until the Nazi tyranny said that no
positive enactment or statue however clearly it was expressed and however
clearly it conformed with the formal criteria of validity of a given legal
system could be valid if it contravened basic principles of morality.[10]It
would conclude that a law clearly offending against these elementary principles
was void and therefore not binding.
Criminal law is
neither exclusive domain of natural law nor positive law but blend of both
thoughts. Positivist are not anti-thesis to morality. Bentham has accepted the
ethics only after empirical test which are found to be useful to society. Moral principles are emerged out of long practice and usage which are bound to be
beneficial otherwise people wound not have accepted it. There are certain
customs based on the superstitions and belief which are either given up or
banned by the law because today’s society is more educated or matured.
H L A Hart another
renewed critics of natural theory admits in his concept of law that, a legal
system must exhibit some specific conformity with morality or justice.[11] Without minimum content of morality law can not sustain the existence of society.[12] Criminal
law reflects the morality of society but
the question is to what extent. This is
the precise question answered by the wolfenden committee under chairmanship of
Sir Johan Wolfenden which was published in 1957. The committee said “There must
be remain a realm of private morality and immorality which is, in brief and
crude terms, not the law business”[13]
Lord Devlin criticized the committee report. Lord Devlin has described
morality is base of society structure and fundamental agreement about good and
evil. This common thought holds society together otherwise society would
crumble.[14] The justification for the enforcement of this
recognized morality is simply that the law may be used to preserve any thing
essential to a society’s existence. There is disintegration when no common
morality is observed and history shows that the loosening of moral bonds is
often the first stage of disintegration.[15] Immoral acts are likely to cause intolerance,
indignation and disgust.[16]
Hart agreed with Wolfenden committee and disagreed with Devlin.
Hart denies that society need to have shared every morality in the sense of
Devlin. Every society must have minimum morality based on the minimum content
of natural law to which every one subscribe otherwise coherence of society is
difficult to sustain and in respect of rest of moralities a individual has
freedom either to share or have his own morality.[17]
The society consisting of different
ethnic, religion , race and caste is called pluralistic and claim that all of a
society’s morality “ forms a single seamless web” would be extravagant.[18]
The permitting of activities which the majority feels as immoral is positively beneficial
because it is possible to prove that majority may be wrong and ‘deviant’
behavior provides opportunity for taking more informed judgments.[19]
Cases like Abortions, Homosexuality, Surrogate mother, Gay marriages and
euthanasia considered to be immoral but
now legalized because of social change which is considered to be more
diversified moral than shared moral. Hart preferred the disintegration of such society whose morality was based on
retrograde principles like hatred than its existence.[20]
House of Lords in Director of Public
Prosecution v. Shaw influenced by Devlin thought held that , the court has“ a
residual powers to defend the moral welfare of the state”[21]
Devlin’s wave had short life. In 1967, the sexual Offence Act based on the
recommendation of the Report of the Wolfenden committee decriminalized the
homosexuality in private place among adults.
Morality and therefore criminal law, cannot be static in a society that
depends on itself as the measure of its own standard. It is therefore, probably
largely correct, to say that an act is punished as a crime because it was
thought to be a serious threat to society at the time when the legislation was
passed.
Criminal law and liberty.
The above discussion suggests
that the criminal law must enforce the public morality not the private
morality. Threshold line between private morality and public morality to some
extent can be made out of great utilitarian Stuart Mill’s theory of harm
principles. Johan Stuart Mill in his Essays on Liberty wrote:
“ That the only purpose for which power
can be rightfully exercised over any member of a civilized community, against
his will, is to prevent harm to others. His own good, either physical or moral,
is not a sufficient warrant”[22]
Mill
advocated that the human conduct which are harmful to others should be guiding
principles for crimes and the act which is harmful himself physically or
morally could never be subject matter of crime because he who consents suffers
no injury. This privilege, he calls it as liberty where the individual has
absolute freedom to do as he likes in which intervention of criminal law is
unwarranted otherwise the greater harm could be caused than prevention of harm.
He further clarifies this principles of utility justifies intervention of law
by way of exception in case of minors and venerable people because they aren’t enough matured to take
judgment or their consent can be easily
obtained. Mill’s liberty theory is derived from the Bentham’s doctrine of utility
Bentham’s logic that self harm could
not be subject of crime because every
person is the best judge of his own interest and no man will consent to what he
thinks hurtful to himself.[23]
Message of Mill is clear that law should
enforce the public morality, leave the private morality exculvesly in the
domain of individuals and harm to others is dividing line between these two.
The concept of privacy embodies the moral fact that a person belongs to himself
and not to others nor to society as whole.[24]
Married couples right to have sex with
devices of contraception or without in the space of martial bed room is to be
decided by couples not by law.[25]
Same reason was extended to unmarried
partners sex.[26]The
right of privacy thus has been held to protect a “ private space in which man
may become and remain himself”[27]
In Jane Roe v. Wade USA Supreme Court struck down Texas criminal Abortion Statues which
prohibits abortions except in saving the life of mother was unconstitutional.[28]
In Lawrence
v. Texas , US
Supreme Court decriminalized the homosexuality between two consented adult in
private place.[29] Delhi
High Court held that Homosexuality is not illegal.[30]
Liberal’s assertion that the harm to themselves would be greater deterrent than
punishment. Doctrine of liberty of Mill’s looks sound and rational, yet number
of liberal’s expressed their dissent saying that the criminal law has role in
protecting individuals from themselves. Consent theory failed to answer why adultery, bigamy and incest acts are made offences. Mill’s theory is useful in the area of limited adult sex and
minor offences.
Hart rejected the Mill’s theory and said doctrine of paternalism the
protection of people against themselves is a perfect coherent policy which
denies the defense of consent in case of homicide and assault.[31]
Sir James FitzJames Stephen attacked the Mill theory saying that no clear line
could be drawn between acts which harmed others and acts which harmed himself. Narcotic
drugs, Alcohol consumption, gambling and
attempt commit suicide, and Euthanasia does not effect actor but effects his
family and society. Moreover societies interest over the well being of its
members should get priority over the interest of individual.[32]
In case like incest, adultery and bigamy offences Lord Devlin’s phrases like “
intolerance, indignation, and disgust” are useful to condemn those acts even
though those conducts does not harm others.
Conclusion.
Immoral Act like, pre-marriage sex, abortions, live in companion, surrogate
mother and home sexuality reflects the value of society is not conservative or traditional but of more
reformed, matured, educated and tolerant. Natural theory of law would not be
sole base for defining crime. There are
immoral acts which are not prohibited and certain moral acts which are not
recognized as legal, tells us crime can not be built upon natural theory. But
that does not mean that moral is irrelevant otherwise risking the legal system
into instrument of oppression. Neither State is tutor of morality of Devlin theory would be welcomed by people in Toto nor
the crime is truly product of positive
law would be accepted. Hart’s blend theory of minimum content of natural law
with positive law would be more appropriate. Basic value or universal value of
morality embraced by the people on the premises that these are essential for
existence and continuation of society should be yard stick for sovereign to
make law. What constitutes and what not constitutes basic moral value can not
be left to the common peoples
determination of jury box as suggested by Devlin because morality is
very sensitive and complex issue, unless it withstand the test of criticisms based on the rationality
and generality requires experts opinion. Acceptance of experts of wolfenden committee
report on Homosexuality and rejecting of
the Shaw case by the United
Kingdom government by way of amending the Sexual offence act 1967 which
decriminalizes the homosexuality sent message that law relation with morality
is not the lay man’s cup of tea. Excluding the private morality from the
concept of law leaves scope of Individual autonomous is healthy sign of accommodating
liberty without which society would not have progressed. Notions of social
morality are inherently subjective and the criminal law can not be used to
unduly interfere with the domain of personal autonomy. Morality and criminality
are not coextensive.[33]
Aristotelian’s concept of natural justice and conventional justice would better
explain morality relation with of criminal law in contemporary society . Natural
justice values are basic to which every one subscribes, like prohibition of
murder, rape etc, where as conventional justice the society may decide either
this way or that way, like homosexuality, abortions suicide etc.[34] German natural law philosopher Stammler’s variable content of
natural law in relation with time, place and circumstances leaves more
room for variety and diversity for
criminal law.[35]
Stuart Mill’s theory of liberty and Bentham’s utility theory
based on the harm to others would be for from perfection. Utility theory may
provides some insight in respect of sexual acts and minor injurious but
clueless for other offences. Decriminalization of prostitution, gambling, and
alcoholism are justified because these minor harm would threaten existence of
society. Same analysis can not be applied in respect bigamy, incest acts
and dangerous narcotic drugs. Marriage
and family institutions would be destructed if bigamy is decriminalized even
though bigamy is based on consent. Society ever never accepts heinous, outrageous, intolerable incest acts
on the consent theory, that’s why most of the legal system prohibited the
marriage between certain relations. Argentina ’s incest case worst than
of Fritizl of Austria.[36]
Entire civilized nations shocked and stunned when it heard,62 years aged father
had sex with his own daughter for nearly 30 years and fathered 10 children who
was convicted for life imprisonment. Even if the free consent of the daughter
and mother of the daughter would not have made difference. Narcotic drugs like
opium, Brown sugar and Heroine have ruined the young generations of so many
states which forced the state to ban them. Bentham’s theory man is best judge
of his own and does not consent which is
harmful to him does not work in case of addicted peoples. There is always a
reason against every coercive law since law can not be made except at the
expense of liberty, if there is compelling or contrary reason against this,
liberty ought to yield to consideration of the general security.[37]
State intervention in the form of banning the narcotic drugs is justifiable
because security of those persons who are addicted to dangerous drugs is more
important than their liberty. These state of
affairs of society compels state to acknowledges the consent theory in
narrow sense than wider. Harts doctrine of paternalism which justifies
intervention of law to prevent harm to himself endorses the Criminal law nature
which is harmonious with liberty.
*
S.G.Goudappanavar. Lecturer, S.C.
Nandimath Law
College
[2] Macklin
Fleming.[1978].Of Crimes and Rights. New York :W.W.Norton&Company.Inc.p.84.
[3]
Freeman,M.D.A.[2001].Lloyd’s Introduction to Jurisprudence,(17th
Ed.)London : Sweet & Maxwell Ltd.p.90.
[4]
Hart,H.L.A.,[2001].The Concept of Law,(2nd Ed.)New Dehli:Oxferd University
[5] Ibid.
p.168.
[6]
Ibid.p.207.
[7]
Hart,H.L.A., op,cit., p.187.
[8] Macklin
Fleming, op,cit., p.20.
[9]Hart,H.L.A[1983].
Essays In Jurisprudence and Philosophy. New York :
Oxford University
[10] Ibid,
p. 74.
[11]
Hart,H.L.A.op, cit., supra f n,4.p.185.
[12] Ibid.,
p.193.
[13]
Wolfenden Committee Report [1957], Report of the Committee on Homosexual Offences
and Prostitution, Cmd 247, London : HMSO.
[15] Ibid,
p.13.
[16] Ronald
Dworkin, [1999] Taking Rights Seriously, Delhi :
Universal Law Publishing Co.Pvt.Ltd.p.242.
[17]Harris,J.W.[1997].Legal
Philosophies,(2nd Ed.)London :Butterworths.p.140.
[18] Sushila
Rao, Decriminalizing Sexual Preference: Should Section 377 of The Indian Penal
Code Be Repealed?. Indian Socio-Legal Journal.2007.p.85.
[19]
Harris,J.W. op, cit.,p.51.
[21] [1962] A C 220.
[22] Mill,
J.S.[1993] On Liberty 13 S. Collin ed, Cambridge :
Cambridge University Press.
[23] Jeremy
Bentham,[1995]. The Theory of Legislation. Bombay : N.M. Tripathi Private Ltd. p.164.
[24]
Thornburgh v. American college
of O
[26]
Eisentadt v. Baired, 405 US
438 [1972].
[27]Naz
Foundation v. Government of NCT of Delhi and others. [WP [C] 7455/2001].p.34.
[28] 410 US 113 [1973].
[29] 539 US 558
[2003]
[30] See,
supr f n,27.
[31]Hart,H.L.A.op,cit.,supr
f n. 20.
[32] Roscoe
Pound,[1998]. An Introduction to the Philosophy of Law. Delhi : Universal Law Publishing
Co.Pvt.Ltd.p.33.
[33] S.
Khushboo v. Kanniammal. [2010] 5 SCC,p,620.
[34]Edgar
Bodenheimer, [2001]. Jurisprudence. Delhi :
Universal Law Publishing Co.Pvt.Ltd. p.9.
[35]
Freeman,M.D.A. op, cit.,.p.93.
[36] www.abc.netau/news/stories.
visited on 13-12-2010.
[37] Jeremy
Bentham, op,cit., p.55.
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