Crime and Morality

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. 

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* S.G.Goudappanavar. Lecturer, S.C. Nandimath Law College. Bagalkot. Karnataka. 587101.

[1] Roscoe Pound.[1972].Criminal Justice in America. New York: Da Capo Press. p.7.

[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,(17^th Ed.)London: Sweet & Maxwell Ltd.p.90.

[4] Hart,H.L.A.,[2001].The Concept of Law,(2^nd Ed.)New Dehli:Oxferd University Press.p.156.

[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 Press.p.73.

[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.

[14]  Devlin, P.[1965]. Enforcement of Morals. Oxford: Oxford University Press. pp 9-11.

[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,(2^nd 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.

[20] Hart,H.L.A [1963] Law, Liberty, and Morality. Oxford: Oxford University Press.  pp.21-22.

[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 and G.476 US 747 [1986].

[25] Griswold v. State of Connecticut, 381 US 479 [1965].

[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.

Definition of Rape Under IPC needs to be redefined.

Section 375 of the Indian Penal Code defines rape. A man is said to commit rape against woman when he has sexual intercourse with such woman under the following circumstances.
1. Against her will.
 2. Against her consent.
 3. With her consent when consent is obtained under threat.
 4. With her consent when woman believes that, he is her husband.
 5. With her consent when the consent was given under influence of drugs or alcohol.
 6. With or without her consent when she is under the age of 16 years.
 Penetration is sufficient to constitute rape. Sexual intercourse by husband with his own wife who is not less than 15 years of age does not amount to rape.

The first law commission drafted IPC during the British rule in India in 1830 decade under the chairperson of Lord Macaulay. Now much of water has flown during these years in the society but the definition of rape remains unchanged that has caused considerable gap between the law and society that is not healthy sign of legal system. Values of the society have undergone sea changes and there is development of diversity of sexual offences against woman. In the light of all these things, the rape definition suffers from serious flaws.

 1 .Narrow definition—Rape defined in the 1830 decade has become out dated in the 21 century. Now days the jurisprudence of sex has widened and it is enjoyed in more diversified manners. Man has invented new methods of Anal and Oral sex to commit sexual offence against woman. Most of western countries have included these things in the definition of rape but it has not happened in India. Even finger sex and some time foreign objects are put into the vagina parts of woman, have become common routine to commit sexual offence against woman. There fore word rape must replace by the sexual offence that would include all these things that makes the definition of rape meaningful and complete.
2. Gender biased definition—Section 375 says that only man can commit rape against woman that is major deficiency of rape. Today in most of the inmate of male prisons, commit anal sex against their own male counter part. Moreover, the child offenders are sexually abused by means anal sex. Even the woman can enjoys the finger sex against another woman or she can put some hard objects into the vagina another woman. All these things suggest that woman against woman or man against man can commit rape under widened definition of rape. Therefore, the definition of rape needs defined neutrally not in reference with male gender.
 3. Marital Rape---Husband is exempted from the offence of rape when he has forcible sex with his own who is not less than 15 years age. Section 375 makes inference that woman is commodity, goods or property of husband and she has to please the sex of husband whenever he demands. If wife refuses to have sex then husband can use force and he can fulfill his lust that would not amounts rape. This section gives blanket power to husband use his wife as sex objects under any circumstances without considering her health. It is era of equality and woman does not loose her identity even after the marriage. Woman should be accepted as human being rather than sex objects. Therefore, whenever husband wants to have sex with his wife then it must with her consent otherwise it should be treated as rape.
4. Less punishment--- whenever husband has forcible sex with his own wife who is less than 15 years and more than 12 years age amounts to rape and punishable with only 2 years. Wife who is living separately under judicial separation or custom. Under such circumstance the forcible sex by husband amount to rape, which is punishable with 2 years imprisonment only. In other cases of rape, minimum punishment is 7 years. These provisions make inference that rape by husband is less serious than rape by stranger that is ironic and it should have been other way. Forcible sex by husband is betrayal of mutual trust and protector himself becomes offenders that cause considerable pain and agony for woman more than rape by stranger.

Difference between Culpable Homicide and Murder.

Section 299 defines Culpable Homicide.

Whoever causes death by doing an act with,

1. Intention of causing death.
2. Intentionally causing bodily injury which is likely to cause death.
3. Doing act with knowledge that it is likely to cause death.

Section 300 defines Murder.

Whoever causes death by doing an act with.

1. Intention  of causing death.
2.  Causing such bodily injury as the offender knows it is likely to cause death of person.
3. Intentionally causing bodily injury which is sufficient to cause death.
4. Doing act with knowledge that it is  so imminently dangerous and in all probability causes death.

The question is when death of man is to be treated as culpable homicide or murder. there is thin difference between the murder and culpable homicide.why this difference is important because the culpable homicide carries maximum punishment of life imprisonment and  where as murder carries death sustenance. 2 and 3 Ingrident of 299 and 3 and 4 of 300 difference is on apparent. read the marked words the difference would be noticed. if the death of the person is more than survival then it is murder. On the other hand death is likely, means survival and death are in the same proportionate, then it is culpable homicide. it depends upon what kind of weapon offender has used and where the injuries are caused.suppose the offender has used the sharp weapon and struck on the vital part of body, naturally the injury is sufficent to cause the death and offender has the knowledge that his act is imminent danger and in all probable death is  bound to occur. This kind of death is called Murder. On the other hand, where the blunt and hard weapon like stick and stone are used and injuries are caused on the hard part of the body. In such cases the death is likely rather than probable, therefore it is culpable homicide and not murder.

The most  confusing aspect is 1st ingredient of both definition because in both definition  there is intention cause death. In both culpable homicide and murder the death is always caused intentionally, then how you can make the difference. Here you have to consider the degree of intention of the offenders. if person is killed in cold blooded manner or with well  planed then it is murder because the intention to kill is in high degree. On the other hand the person is killed without pre planed, in sudden fight or in sudden anger because of some ones provocation or instigation, then such death is called the culpable homicide. whether it is murder or culpable homicide is question of fact depends upon the degree of intention, what kind of weapons are used and where the injures are struck.

Exception 1-5 to 300 section says killing of human being is considered as culpable homicide does not amounts murder. There are three three headings which deals with death of human being.

1. Culpable Homicide. section-299.
2. Murder-Section 300.
3. Culpable Homicide does not amount murder-Exceptions 1-5 to 300.

The drafter of IPC have created the confusion by defining culpable homicide under 299 and creating  five exceptions to murder and calling it as culpable homicide does not amounts murder. Both deals with the same matter, it would have been better if section 299 is omitted.   

Man fights dead son.s divorce case. reported in indiatimes.com.

80 years old father authorised by the Bomabay High Court to pursue the divorce procedings intiatied by the son after his death is important development in the law.

Right to seek either criminal or civil justice is important right of every human being. Rights are enjoyed  by the person after his berth and before the death. It means rights cannot be enforced against or in-favor of dead man.

Criminal justice is based on the principle of "Actio personalis moritur cum persona." means man can not punished in his graveyard. The object of Criminal justice is to punish the wrong doer, so his death terminates the proceedings of criminal trial because dead man can not imprisoned or punished. Now days punishments may in the form of fine also. In such case the trial may be continued because the fine would be recoverable  from his estate. This is okay when the trial is over, fine has been imposed thereafter the criminal is dead. supposes the criminal dies during the trial the question would it be continued even it is punishable by fine.Another principle of criminal proceeding is that trial should be held in the presence accused and he should be given chance defend himself. on this logic the criminal trial would not be continued after death of the under-trial.

The matter is different in case of the civil proceedings. Object of civil justice is to claim the damages which can be achieved inspite of death of the party because the awarded damages would be recovered from the property of the dead man which is now in the hands of heirs. Civil suits may be related to property rights or personal rights.Death makes difference in case of civil suits related to personal rights. for example A has filled the suit for enforcement of conjugal rights against his wife, if wife dies during the  proceeding, then proceedings would  not be continued because the conjugal rights can not be enforced agains the dead wife.

In this reported  case also son has filled the divorce procedings against his wife during his life time. Now the death of the son naturally the terminates the proceedings of the divorce because it is based on the personal rights of the parties.when the person who wanted to seek the divorce from the wife is no more alive then no one else can claim it on his behalf because it his personal right.Nevertheless is this theory or principle is fair or unfair.when the man has filled divorce petition against his wife then he has made his intention clear that woman should be continued as his wife. during the suit proceedings if the petitioner dies, why the proceedings would not be continued. what is harm in contuning the case. The man who wanted to get rid of from his wife would be continued as legal wife for ever. Moreover she would inherit his property as class one heir excluding others, against whom he fought for entire life and spend all his resources for that legal battle. Mere death frustrate all these things and his foe becomes most preferred legal heir, What humiliation or insult to that dead man? Don't u think the proceedings of that man should be continued by the legal heirs? Bombay High Court has done right thing by allowing his father to continue the divorce proceeding insituted by the deceased son. I think judgment is highly appreciable.

Natural law.

1. natural law lies in ethics, religious, supernatural.
2. Moral justification for existing social and legal system.
3. Different concept, Doctrine and meaning at different time.
4. Universal, eternal law, unwritten law.
5. principles of morality and justice.