Meaning of Crime and Criminalization Policy

The formulation of a satisfactory and unanimously accepted definition of the word “crime” has been and still is one of the most difficult tasks for writers in criminal law. The difficulty stems largely from the complexity of the concept and the elusive imprecision of the word “crime” to the critical inquirer.

The definition of crime in Nigerian criminal law appears to conform to the pattern of the general observations made on the different efforts at a definition of the word “crime” in the criminal code and the penal code, the word offence is used instead of the traditional word “crime”. But since the adjective “criminal” is also used in both codes and in the constitution, the words “crime” and “offence” would appear to be interchangeable and the courts use both terms indiscriminately.

Blackstone proffered that;

A crime, or misdemeanor, is an act committed or omitted in violation of a public law, either forbidding or commanding it.

It can be seen from this definition that Blackstone achieved nothing beyond pointing to sign posts towards the identification of conduct as criminal.

Sir James Pity Stephens proffered a definition which is extremely challenging. After clearly indicating that these is a difference between the popular and legal meaning of the word “crime”, Stephens went on to define crime in its strict legal connotation as “an act or omission punished by law”.

Russell says a crime is an

Act or omission involving breach of a duty to which by the law of England, a sanction is attached by way of punishment in the public interest, and for which the ordinary remedy is by indictment.

Halsbury’s definition is not materially different, he wrote that

a crime is an unlawful act or default which is an offence against the public and renders the person guilty of the act or default liable to legal punishment.

Professor Kenny in his outlines of criminal law also offered his own definition. He said

A crime is a wrong whose action is punitive and is in no way remissible by any private person but is remissible by the crown alone, it remissible at all.

Cross and Jones say that;

A crime is a legal wrong the remedy for which is the punishment of the offender at the instance of the state

Prof. Adeyemi defined a crime as

An act/omission which amounts on the part of the doer or ommitter to a disregard of the fundamental values of a society thereby threatening and/or affecting the life, reputation and property of another or other citizens or the safety, security, coercion and other political, economic, and social aspects of the community at any given time to the extent that it justifies society interference through and by means of its appropriate legal machinery.

Whatever definition of a crime may be adopted, the fact still remains that a crime;

• Is an act or omission;
• Prescribed by the state; and
• Has a punishment for its occurence.

Key points

• The prosecution for an offence is usually taken up at public expense though occasionally we have private prosecutors. In civil matters the aim is to get monetary compensation or restitution for the injured plaintiff.
• A plaintiff may waive his civil rights and forgo the prosecution of his claim; it is however only the state that can pardon an offender or order a ‘nolle prosequi’. The primary aim of the criminal law is the punishment of the offender though occasionally compensation or restitution may be ordered. In some cases what is immoral is also criminal but that is not to say that morality and criminality and co- extensive.
• An act or omission may be a crime as well as a civil wrong. Assaults, libels, malicious damage and fraudulent conversion are examples of crimes that also give rise to civil liability. But treason, traffic offences, drug offences, currently offences and a host of others are pure crimes which are prohibited in interest of the state or the public in general: they do not as such give rise to a civil claim by the citizen.
• Under our Criminal Code Act (Sect. 2), an act or omission which renders the person doing the act or making the omission liable to punishment under this code, or under any act, or law, or statutes is called an offence. By this definition of an offence, we are saved from engaging in the controversy of what is a satisfactory definition of a crime.
• Crimes are those breaches of the law resulting in special accusatorial procedure controlled by the state, and liable to sanction over and above compensation and costs.
• There is no special intrinsic characteristic of criminal conduct distinguishing it from non-criminal conduct. We can only say that it is a crime after first having enquired whether it is prohibited by law, it is also attended by the requisite legal procedure.

Principles of criminalization

Joel Feinberg has identified ten guiding principles that should provide a guide for making determinations about one type of conduct that should be prohibited by penal legislation. Feinberg labeled these principles as “liberty limiting principles”.

A liberty limiting principle is one which states that a given type of consideration is always a morally relevant reason in support of penal legislation even if other reasons may in the circumstances outweigh it.

It is important to note that other liberty limiting principles propounded by other philosophers are distinct and separate from Feinberg’s but not rivals as all of them could be true.

These ten (10) principles have been zeroed down to four (4) principles and recognized by Anglo-American philosophy. They include;

• The harm principle
• Legal moralism
• The offence principle
• Legal paternalism

The harm principle

The harm principle owes its origin to the work of John Stuart Mill. It is designed to chart the parameters of permissible government interference with liberty/autonomy of citizen.

Thus it aims at restricting the state in its coercive use of power. In this connection, the sole reason for this interference as posited by Mill is for ‘self-protection’ and to prevent ‘harm to others’.

Criticisms of the harm principle

Feinberg argues that the harm principle cannot be the only relevant principle of criminalization. It is only an element and thus cannot stand on its own.

Holtug also disagrees, saying that the harm principle is a necessary but not a sufficient condition for criminalization.

Mill’s views have been criticized for oversimplification of criminalization in that there are other principles that should justify society’s interference.

It has also been criticized for being too broad to delineate the distinction between conducts not deserving penal prohibitions.

Also, it has been described as being too narrow to capture whether interference will inflict harm on the person it is trying to protect.

Feinberg connecting on Mill’s principles noted that not every act causing harm to others can be rightly prohibited but those that cause avoidable and substantial harm.

Thus, the harm principle must be sufficiently precise to clarify the criterion of which act is serious enough to justify state interference.

The meaning of harm

Failed attempts to develop a plausible version of the definition of the harm principle has added to the frustration with Mill’s famous harm principle.

The dictionary defines ‘Harm’ as physical, mental, or oral injury or damage. This definition is not helpful as it does not explain that qualifies as harm, merely concentrating on the effect of harm as an injury or damage. ‘injury and damage’ in the definition also needs to be determined.

Jerome Hall is of the view that criminal harm includes physical harm, but more essentially, it refers to harm to intangible interest and injuries to intangible values or abstract values. To Hall, criminal harm signifies or is equated to loss of value. This loss of value is dependent on what society thinks to constitute value.

Two important novelties advanced by Hall’s conception of harm have been identified. The first is the attempt to find a notion of harm capable of fitting all sorts of crimes, and second, as a necessary consequence, the abstraction of harm towards a notion of incorporeal interest and values.

Albner Eser noted that whatever amounts to a loss of intangible interest is dependent on whether the society thinks value to be of great importance such that public opinion will impose some normative relationship on that value to protect it from harm.

For example, the society thinks that loss of women’s bodily autonomy and reproductive right is threatened by RAPE and ABORTION LAW, the society through the instrument of public opinion influences the government to legislate against rape and other offences threatening its value or interest.

Eser believes harm is the violation of a legally protected interest, worthy of protection and recognized in harmony with the spirit value order established by the constitution.

In that connection, criminal harm becomes the endangering negation and destruction of an individual, group or state interest deemed valuable, harmonious with the constitution and protected by criminal sanction.

To Kleinig, harm principle is the legalization of the concept of harm. He argues further that legalization of the concept of harm is designed to rationalize legal interference with the liberty of citizens.

Of course, this is true but Kleining misses the point in that the interference by the state is strictly to protect legally and socially recognized interest.

N.B The most extensive and detailed meaning of Harm is given by Feinburg and they are divided into 3 senses:

• DERIVATIVE/EXTENDED SENSE: In this sense, anything can be harmed. The reference to the arm done to the property is not because of the grief resulting from the harm, but that the harm is done to the interest in the affected object, hence in a transferred sense. The derivative sense of harm focuses on damage to the object but not why the object is deserving of legal protection. Thus, legal protection is only relevant when the object possess an interest beneficial to the owner.
• THWARTING/SETTING BACK/DEFEATING AN INTEREST: In this sense, a person is said to have an interest in a thing when he has a stake in its well-being. Thus, he has a stake when he stands to gain something depending on the nature or condition of the thing. It follows that, if that thing or the condition of that thing is diminished, his interest in it is thwarted or defeated. A person, according to Feinburg is harmed in the legal sense whether the invasion has infact set back that interest, depends on whether the interest is in a worse condition than it would have been had the invasion not occurred.
• NORMATIVE SENSE: Harm is this sense occurs when one person wrongs another by his inexcusable and unjustifiable conduct which violates others right or defeating others interests. Feinberg consequently believed that Mill’s Harm principle overlaps between the 2nd and 3rd senses: setbacks that are wrongs and wrongs that are setbacks to interest.

A critical part of the harm principle is the notion of harm to others – Mill’s harm principle does not support criminalization of just any kind of harm but the harm that affects others.

Nina Persak has argued that the issue of the identification of “others” in criminal law can perhaps be more easily approached via the identification of ‘victim’ or victims.

It is generally with respect to the person whose right or interest is the object of the protection of criminal law that the meaning of “others” in the harm principle can be properly understood.

Legal moralism

Legal moralism is concerned with the question whether the criminal law should be used to punish immorality “as such”. This concept is subsumed under the debate on relationship between law and morality. Legal moralism posits that immorality is a justified reason for criminal proscription of that conduct. Feinberg thus explained that legal moralism approves that it is morally legitimate to forbid or prohibit conducts that are inherently immoral and do not pose harm to individuals, stare or the actors. This principle is rejected by liberalists who assert that immorality alone should not criminalize a conduct except it causes harm to others. Liberalists however also believed and accepted that a large think of criminal law reflects moral values but they reject drawing a general justification from such instances as basis for arguing that the criminal law should punish conducts that are immoral.

Jeremy Bentham lent his voice by asserting that a distinction between public morality and private morality by saying that there are useful or advantages acts beneficial to the state that the law ought not to command as well as those that the law ought not to forbid, but which morality forbids. Consequently, he argued that

Legislation has the same centre with morals, but it has the same circumference.

The Devlin/Hart debate

Modern debate on legal moralism versus liberalism can be traced to the Delvin/Hart debate in the second half of the 20th century. The debate was set against the background of the Wolfednen Report the report of the committee on Homosexual offences and prostitution.

In recommending the decriminalization of homosexual practices between consenting adults in private, the committee identified what it perceived to be the function of the criminal law thus:

The function of Criminal Law … is to preserve public order and decency, to protect the citizen from what is offensive and injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are especially vulnerable because there are young, weak in body or mind, inexperienced, or in a state of special physical, official of the law to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behavior, further than is necessary to carry out the purposes we have outlined.

The committee stressed the importance which society and the law ought to give to individual freedom of choice and action in matters of private morality. The committee noted that:

Unless society deliberately attempts to equate the sphere of crime with sin, there must remain a realm of private morality and immorality which is not the law’s business.

Patrick Delvin disagreed with the view that there is a realm of private morality and immorality that should not be the business of the law. He argues that there exists what he called “public morality”, conceived as a community of ideas about the way society’s members should behave and govern their lives. This public morality is not a ascertainable by majority public opinion but by the standard of a reasonable man who is different from a rational man.

This reasonable man is not expected to reason anything but to just feel. This feeling of the right-minded person must be supplemented with or by a feeling of reprobation, intolerance, indignation and disgust because these are the forces behind the moral law, in the absence of which the “feeling of society cannot be weighty enough to deprive the individual of his/her freedom of choice.

Hart rejected Devlin’s thesis by calling for examination of these feelings to subject them to critical reasoning, sympathetic understanding and scrutiny so as to sieve out ignorance, superstition and misunderstanding. Feinburg advocating for Hart says that appealing to conventional or popular morality as the rightful basis of criminal responsibility is unfruitful if it is predicated upon widespread prevalent feelings without rational support. Thus, if ‘B is immoral’ is changed to ‘B is criminal’ then it must be by critically objective and correct moral principles.

Ronald Dworken, another one who criticized DEVLIN’S postulations asserts that Devlin’s thesis is based on an anthropological sense. Thus, if most men think homosexuality as an abominable vice, it is possible that it is as a result of a compound prejudice. It is worthy to note that HART, DWORKEN and FEINBERG’S criticisms are insightful because it asserts that in a liberal democracy, ideas about morality and enforcement by criminal. Law should not be shielded from extensive rational inquiry. Hence, the thrust of their argument is that criminal law does not extend to matters that cannot be justified after critical and rational interrogation. Sometimes the majority may be genuine and ignorantly wrong.

Morality and harm

On the concept of suicide, euthanasia etc. and other self-inflicting harm, HART asserts that this brand of morality is explained away from the realm of legal moralism but in legal paternalism, being a principle designed to protect individuals from themselves which according to HART is a coherent policy. HART’S sudden attempt to direct legal paternalism from legal moralism can be best described as POLEMICAL PROSTITUTION.

This is because, earlier on HART already condemned society’s interference into private lives of citizens and that interference can only be justified when the public is faced with harm. A person seeking euthanasia to die peacefully/painlessly being in a vegetative state does not pose threat or defeat any interest of government. He is in fact in his privacy. On what basis them is society interfering with his private morality and choice to end as otherwise excruciating and worthless existence since no harm is suffered by society. If the interference is because of protection from self which results in death in this instance, why doesn’t the society apply the same logic to homosexual who by their unnatural acts are ultra-vulnerable to illnesses and infectious diseases arising from the act. Since it is medically proven that sodomy has infact numerous negative health consequences. This is none other than selective absorption of facts.

MACCOMMICKS AND NAGEL disagree with HART by asserting that they cannot be diverted or demarcated. FEINBERG’S meaning of harm in the normative sense is related to COMMICKS AND NIGEL’S stance. FEINBERG asserts that no person has any meral right to protection of interests that are cruel, wicked, sadistic and morbid. We can see that MR. FEINBERG is also guilty of oscilliation. What if conducts that are qualified with the above adjectives are non-injurious to society? Would that not be interference with private morality? He continues that those cruel interests are not deserving of legal validation.

FEINBERG’S theories could also be criticized in that he failed to delineate or decipher which conducts are inexcusable and unjustifiable. His idea of wrongfulness is incomplete because he bases then on implicit and intuitive specification of what a person’s right are.

Principle of offence to others

There are some offences that wrong people but do not fundamentally affect them as to cause harm. These offences that are merely wrongful without causing any harm may be regarded as minor offences that only attract less punishment or even caution. But those that cause substantial harm are those that should be sanctioned in accordance with the severity of the act (i.e. commensurately)

Sections 234, 231, 242 and 247 of the Criminal Code are examples of minor offences that are properly punished, albeit mildly.

Legal paternalism

This legal principle supports criminal probation of harm to the actor himself. Thus, it aims at protecting the actor from himself even when he doesn’t harm himself. KLEINIG believed that some paternalistic laws are coercive active paternalism and others are not passive paternalism.

• Active paternalism in under laws on hearing of seatbelt, helmet, life preserver for ship crews etc.
• Passive paternalism includes laws that prohibit swimming at dangerous and ungraded beaches, use of narcotics, suicide, euthanasia, etc.