The conceptual and moral framework of criminal law

Introduction
The need for law lies in the history of the human race. In early times, when the first humans
appeared on the earth, laws were not needed, because there were few conflicts. However
when people began to live in groups, communities, and societies, laws became necessary.1
People are individuals and their desires, needs, and wants vary from those of others. These
differences caused conflicts which gave rise to law as a means of social control either to
alleviate conflicts or to settle them in a manner most advantageous to the group.
As a means of social control, the enforcement of law in early rural societies was usually
handled informally by friends, family and neighbours, who could criticize, correct and
ostracize those who violated the folkways and morals.2 Arguably, with the growth of cities
and towns formal ways of dispute resolution were introduced where matters would then be
handled in the courts.
Early development of Criminal Law
Criminal law is an offspring of personal vendetta. 3Arguably, at some time in the
development of each society, when one person injured another, it became the responsibility
of the victim or the victim’s family to seek redress. The community was in no way involved
which led to the rise of the theory of retributive justice. In olden days, principle of punishment
was ‘blood’ for ‘blood’ and it was held very brutally and indiscriminately. The retributive theory
is perhaps the oldest one. With the advent of psychology and other inter human relationship
disciplines, the ways and methods of punishment have undergone some modification.
Conceptual framework of criminal law
Law is one of the important pillars of the state. To administer justice, punishment is needed.
There are various theories of punishment which are retributive, deterrent, and reformative.
Punishment is a recognized function of all the states. In other words, existence of law entails
punishment. Punishment means infliction of suffering on wrongdoers. First thing in this
definition is that punishment is limited only to wrongdoers. The story of wrongdoing and its
retribution is as old as civilization itself. System of punishment has changed and tailored with
the passage of time but it always remained the part of social system. For centuries, penal
1 Chamelin N., Thomas A., Essentials of Criminal Law, (10th Edn, Prentise Hall), p2
2 Chamelin N., Thomas A., Essentials of Criminal Law, (10th Edn, Prentise Hall), p3
3 Chamelin N., Thomas A., Essentials of Criminal Law, (10th Edn, Prentise Hall),p4

theorists have debated the ethical origins of criminal liability and punishment. The basic
concept is that criminal liability is justified either because the offender deserves punishment
or because punishment makes society safer, whether through deterrence, rehabilitation, or
incapacitation.4 The suffering of pain by the person who is punished is considered a bad thing
in itself. To exercise this bad thing needs to be justified. To ask whether punishment can be
justified, may be to ask if it has some purpose? Or whether it is the best way to achieve the
purpose? It is too hard to separate the definition from justification. Punishment is a value
laden word. Somehow or the other the question of punishment becomes the question of
morality and of law as well. In the long run this question simply becomes the question of
social order.
The distributive theory
The distributive theory of criminal law holds that an offender ought to be punished, not
because he is culpable (as he may not have intended harm) and not because such punishment
increases net security in the world (as it empirically may not), but because punishment
appropriately distributes pleasure and pain between the offender and victim.5
“Distributive justice involves the appropriate distribution of goods among a group (“giving
each person his or her due”). Most of the better known modern discussions of justice, which
usually treat justice primarily as about the proper structuring of government and society, are
basically discussions of distributive justice.”6
Retribution
Retribution is in fact an application of a general rule of “tit for tat”. By doing an offence the
wrongdoer challenges the law of the state and in return he has to face the consequences in the
form of punishment. In this view punishment is solely related with the breaches of law. The
other important point in this regard is that how severely the offender should be punished?
Retribution is the sole consideration in fixing the amount and kinds of punishment.
“Punishment can never serve nearly as a means to further another good either for the offender
himself or for society but must always be inflicted simply and solely because he has
committed a crime. The law of punishment is Categorical imperative.”7 Kant is of the opinion
4 Aya Gruber, A Distributive Theory of Criminal Law, 52 Wm. & Mary L. Rev. 1 (2010),
http://scholarship.law.wm.edu/wmlr/vol52/iss1/2
5
Aya Gruber, A Distributive Theory of Criminal Law, 52 Wm. & Mary L. Rev. 1 (2010),
6
Burton M.Leiser, Liberty,Justice and Morals (NewYork: Macmillan
Publishing Co.Inc.),p. 214.
7
Immanuel Kant, Philosophy ofLaw,tr.by Hastie (Edinburgh:T&T
Clark), p.198. Burton M.Leiser, Liberty,Justice andMorals (NewYork:

that from the moral point of view, punishment is retributive. In discussing the problem he
went so far as to say that: “If the world were about to come to an end, it was therefore evident
that to one would benefit from the punishment of prisoners, who have been sentenced to
death, those be executed nevertheless, in the interest of righting the balance of justice.
Theorist George Fletcher, for example, opines that retributive justice demands “seeking
equality between offender and victim by subjecting the offender to punishment.”8 The
retributive theory claims that offence is a necessary element for punishment. If there is no
crime, there would be no punishment. The offender should be treated as an end in himself not
as a means. There is no other question of reformation of the criminal or for the good of
society.
Deterrence theory
The deterrent aspect of punishment is perhaps the most important one. Each punishment
somehow or the other has the deterrence. The main purpose of the law of crime is to make the
wrongdoers an example and warning to others. The objective of punishment is not only to
prevent the criminal from doing crime for the next time, but also make him an example for
other people who have such kind of intentions. The aim behind the deterrent punishment is to
secure society rather than individual. “The deterrent theory was the bases of punishment in
England in medieval times and continued to be so till the beginning of the 19th century. The
result was that severe and inhuman punishments were inflicted even for minor offences in
England. In India also, the penalty of death or mutilation of limbs was imposed even for petty
offences.9
The justification of the punishment is only as a means to an end and its main purpose is to
prevent society from future offences. The sense of punishment is always to deter the offender
and the other members of the society. In other words the objective of punishment is not only
to straighten the wrongdoer but the betterment of society in the long run.10 By giving
punishment to wrongdoer, there would be two fold psychological effects, on one side, to the
offender and on the other side to the society. There is another side of the picture. The
offender sometimes has some deep rooted psychological problems which force him to do a
particular action. Instead of getting afraid the offender may become more aggressive and
want to take revenge. Suicide killing may be one of the examples.
Macmillan Publishing Co.Inc.),p. 214.
8
Bilal Ahmad Malik, Friday Feature “PurposesofPunishment”, The Dawn (Lahore),November30, 2007.
9
V. D. Mahajan,Jurisprudence (ShanBookCorporation,1-TurnerRoad nearHigh Court,Lahore,n.d.),p. 146.
10
V. D. Mahajan,Jurisprudence (ShanBookCorporation,1-TurnerRoad nearHigh Court,Lahore,n.d.),p. 149

Reformation theory
Reformatory theory wishes to give as little pain as possible and tends to improve much. On
the other hand, criminals should be sought at any costs. If the retributive punishment is
chosen in spite of its bad consequences to individual or society, it would be a crime by itself.
“Retributive justice may be a very good thing, but the saving of the souls is a much better
thing, and to seek to achieve the first at all costs, even where it will probably involve the
sacrifice of the second, seems to me not amoral duty but positively, and in a serious degree,
wrong.”11
There is a great hue and cry over the death penalty from the side of psychologists,
sociologists and different NGOs of human rights. They claim that death penalty should be
stopped because it is inhuman. The plea they take that by giving death penalty we are
committing another offence that we kill a man.12 Nowhere else is it right deliberately to
inflict evil as such. Yet here we are asked to inflict pain for pain’s sake. It seems strange that
a kind of action which under ordinary conditions is regarded as the very extreme of moral
depravity should become a virtue in the case of punishment.13
Moral framework of criminal law
A criminal statute is simply the formal embodiment of someone's moral values (usually the
group dominant in political authority) in an official edict, reinforced with an official penal
sanction. Moreover, the mere fact that a given act is made punishable by law does not settle
the question of the immorality of the prohibited conduct; it does not preclude people from
passing moral judgments on the rightfulness or wrongfulness of the behaviour.14 The
dominant group whose values are expressed in the law is only one of many groups which are
integrated in the moral and political fabric of the community. When the moral values of one
or more of these other groups are not -in accord with the moral values of the dominant group
we are likely to have a persistent problem of law enforcement. Thus viewed, the problem of
the criminal law in action reduces to the problem of conflicting moral values held by different
groups and classes in the community.
11
Burton M.Leiser, Liberty,Justice and Morals (NewYork: Macmillan Publishing Co.Inc.),p. 215.
12
A. C. Ewing, The Morality ofPunishment (Montelair,N. J.: Patterson Smith,1970).
13
A. C. Ewing, The Morality ofPunishment (Montelair,N. J.: Patterson Smith,1970).
14 Richard C. Fuller, Morals and the Criminal Law, 32 J. Crim. L. & Criminology 624 (1941-1942)

Traffic violations do not often brand the offender as guilty of moral turpitude. In fact, the
recipient of a traffic ticket is usually simply some good-natured joking by his friends.
Although there may be indignation among certain groups of citizens against gambling and
liquor law violations, these activities are often tolerated if not openly supported by numerous
residents of the community.15 There are several reasons why the criminal behaviour in the
examples cited is not regarded as immoral by general community consensus. Such deviations
simply do not carry the same opprobrium of vicious immorality as do other offenses such as
murder, kidnapping, rape, arson, and robbery. They do not threaten our physical and
pecuniary survival in the same way as do the more heinous offenses against person and
property.
The degree to which the sphere of conduct defined as criminal coincides with the sphere
defined as immoral depends upon the relative homogeneity of moral values within the society
represented in any political jurisdiction. Theoretically, in a primitive society where there is
almost complete agreement on moral values the public opinion enforced mores for all
practical purposes comprise the unwritten criminal code of the tribe. What is immoral is by
hypothesis criminal.16 In advanced, industrialized societies, characterized by urbanization,
where there is only a small dore of common values, surrounded by numerous conflicting
codes of behaviour, the sphere of conduct generally agreed upon as wrongful grows smaller
as the segmentation and differentiation of the society continues. With increasing disparity in
values some common denominator for conduct is needed and hence resort is made to the
codes of the criminal law which apply to everyone within the same political jurisdiction.
It is probably true that our criminal codes do contain the moral minimum of our day and age.
That is to say, those values which we hold most sacred and least dispensable are elevated by
public opinion to the status of protection by the criminal law. Thus, many of the statutory
enactments of our modern criminal codes merely redefine as criminal certain behaviour
which for many generations has been outlawed by the unwritten mores of our ancestors.
These moral minima are found in the many criminal laws which punish offenses against
property, such as burglary and robbery; against the person, such as murder, assault, and rape;
against the marriage institution, such as incest and bigamy; against public order and decency,
such as disturbing the peace and public immorality; against the state, such as insurrection and
treason. All these instances represent behaviour which the vast majority of the community
15 Richard C. Fuller, Morals and the Criminal Law,32 J. Crim.L. & Criminology 624 (1941-1942)
16 Richard C. Fuller, Morals and the Criminal Law,32 J. Crim.L. & Criminology624 (1941-1942)

deems to be injurious to its best interests, welfare, and survival. No matter what an
individual's age, sex, race, nationality, religion, or income, he will likely subscribe to the
moral values protected by such laws.
On the other hand, contemporary criminal codes go far beyond the moral minimum in
prohibiting various forms of conduct which are not viewed as wrongful by important groups
and classes in the community. 17Violations of such laws constitute a second type of offenses
which exploit a high threshold of community tolerance or endorsement. Crimes of this
category are exemplified by circumvention of new social legislation, bribery of public
officials to secure favourable contracts and legislation, fraud and misrepresentation in the.
financial statements of corporations, manipulations on the - stock exchange, embezzlement
and misapplication of funds, illegal transactions of public utility companies, gambling
syndicates, liquor law violations, and commercialized vice. These crimes are committed
either by white-collar upper-class businessmen who have the respect of most of the
community, or by organized criminal rings which have the support and patronage of a
sizeable segment of the citizenry.
Moral sanctions rarely originate in legislatures, but rather in the more primary social
groupings of the family, neighbourhood discussion groups, school and church.
Arguably, the question of what is morality and whether morality ascribes to the laws is a
question of jurisprudence where different schools of thoughts are brought about and critically
analysed.
Theories of law
Natural law theory
The school of jurisprudence regarded as natural law is based, traditionally; ‘on arguments for
the existence of a “higher law”, elaborations of its content, and analyses of what should
follow from the existence of a “higher law”…’ The classical Greek writers are credited with
having originated natural law ideas. In addition, Cicero (106BC-43BC), a Roman orator, is
among those who provided one of the best formulations of natural law in those ancient
days.18 Among the outstanding proponents of traditional theories of natural law include Saint
Thomas Aquinas and John Locke.
Ideas related to natural law jurisprudence originated from ancient Greece and Rome.
Originally, ‘natural law’ was a general moral theory which focused more on the nature of
17 Richard C. Fuller, Morals and the Criminal Law,32 J. Crim.L. & Criminology624 (1941-1942)
18 Brian Bix, Jurisprudence:Theory and Context (5 edn Sweet and Maxwell 2009 London) 67.

morality, rather than the nature of law per se. The basic idea was that man, using his reason,
and possibly with the help of the revelation of God, could come to understand how he should
act rightly in respect of his fellow man. This morality of reason and revelation was a morality
which purported to take account of man’s nature, hence the title ‘natural’.
Thomas Aquinas (1225-1274)
Aquinas mixed both the concept of the higher law of God and the law of reason in his natural
law views. Aquinas was of the view that natural law is the validating factor for human
(positive) law.19 He was also of the view that human (positive) laws that are just have their
binding force in conscience.20
Different types of laws as postulated by Aquinas include:
i. Eternal Law: laws of the universe --- ‘the whole community of the universe’ is
governed by God who ‘is not subject to time but is eternal’;
ii. Divine Law: the revealed word of God (revelation) --- we need to be guided to our
'supernatural end,’ our reason being inadequate to reveal it to us;
iii. Natural Law: eternal law as it applies to us, which we know by reason: ‘The natural
law is promulgated by the very fact that God instilled it into men's minds so as to be
known by them naturally’;
iv. Human Law: created by humans for the purpose of implementing natural law
According to Aquinas, there are truths about the nature of law which are accessible to natural
reason, that is, to ordinary experience (including the specialized observations of natural
scientists), insight, and reflection; and these include practical truths about good and evil, right
and wrong. In addition, Aquinas is of the view that many of those truths of the nature of law
that arise from natural reason are confirmed, and even clarified, by divine revelation, that is,
the propositions communicated directly or inferentially in the life and works of Christ, as
transmitted by his immediate followers and prepared for in the Jewish scriptures, which has
been accepted by those followers as revelatory.21 Further, Aquinas argues that some of the
truths divinely revealed could not have been discovered by natural, philosophical reason,
even though, once accepted, their content and significance can be illuminated by the
philosophically ordered reflection which he refers to as theology.
19Brian Bix, Jurisprudence:Theory and Context (5 edn Sweet and Maxwell 2009 London) 69.
20Brian Bix, Jurisprudence:Theory and Context (5 edn Sweet and Maxwell 2009 London) 70.
21 Brian Bix, Jurisprudence:Theory and Context (5 edn Sweet and Maxwell 2009 London)72

According to Aquinas, state governments and laws are subject to moral standards, including
but not limited to the principles and norms of justice. In a summarized form, Aquinas
perception of what constitutes valid law may be described through four propositions:
i. It is a matter of intelligent direction addressed to the intelligence and reason of those
whom it directs;
ii. It is for the common good of a political community;
iii. It is made (positum, put in place) by the ruler(s) responsible for the community in
question;
iv. It needs to be coercive.
John Locke (1632–1704)
Locke combines both the concept of law of God and law of reason, and further employs that
concept to introduce the idea of natural rights.
According to Locke, God created man and, therefore, human beings are in essence God's
property. The chief objective of man as determined by God is survival. Men have been put in
the world by God and made to share one common community of nature. There should,
therefore, be no subordination between men, or even destruction of each other. In addition, no
man has the liberty to destroy himself, or destroy any creature in his possession. Therefore,
murder and suicide violate the divine purpose for humanity. According to Locke, since
survival is God’s objective for humanity, then the necessary means to that end are life,
liberty, health and property.22 To Locke, these are natural rights, and are rights that humanity
has even in a state of nature before the introduction of civil government, and all people have
these rights equally.
Legal positivism
Positivism is based on the perception that an appropriate description of law requires to be
separated from moral judgments – for instance, in relation to the value of the present law, or
with respect to the manner in which law should be amended or developed.23 The origin of
legal positivism may be traced to the ides of Thomas Hobbes, a political theorist and
philosopher.24
Legal positivism is, therefore, the thesis that the existence and content of law depends on
social facts and not on its merits. The positivist thesis does not, however, say that law's merits
are unintelligible, unimportant, or peripheral to the philosophy of law. What it says is that
22 Brian Bix, Jurisprudence:Theory and Context (5 edn Sweet and Maxwell 2009 London)72
23 Brian Bix, Jurisprudence: Theory and Context (5 edn Sweet and Maxwell 2009 London) 33.
24 Brian Bix, Jurisprudence: Theory and Context (5 edn Sweet and Maxwell 2009 London) 33.

they do not determine whether laws or legal systems exist. Whether a society has a legal
system depends on the presence of certain structures of governance, not on the extent to
which it satisfies ideals of justice, democracy, or the rule of law. What laws are in force in
that system depends on what social standards its officials recognize as authoritative; for
example, legislative enactments, judicial decisions, or social customs. The fact that a certain
rule or regulation would be unjust, unwise, inefficient or imprudent is never sufficient reason
for doubting its validity as law.
For positivists, the validity of law is not determined by moral (external) factors but by an
internal criterion that is part of law. For instance, Hans Kelsen advocates for the grundnorm
or basic norm as the validating factor of laws within a legal system, while HLA Hart states
that the validating factor is the rule of recognition.
As to what is the core nature of law, Austin's answer is that laws (‘properly so called’) are
commands of a sovereign. He clarifies the concept of positive law (that is, man-made law) by
analyzing the constituent concepts of his definition, and by distinguishing law from other
concepts that are similar. Austin succeeded in delimiting law and legal rules from religion,
morality, convention, and custom.
Within Austin's approach, whether something is or is not ‘law’ depends on which people
have done what: the question turns on an empirical investigation, and it is a matter mostly of
power, not of morality. Of course, Austin is not arguing that law should not be moral, nor is
he implying that it rarely is. He is merely pointing out that there is much that is law that is not
moral, and what makes something law does nothing to guarantee its moral value.
According to Bentham, law may be defined as an assemblage of signs declarative of a
volition conceived or adopted by the sovereign in a state, concerning the conduct to be
observed in a certain case by a certain person or class of persons.25 However, while Austin’s
‘sovereign was postulated as an illimitable, indivisible entity’; Bentham develops the concept
of ‘divided and partial sovereignty.’26 In addition, Bentham acknowledges that some legal
restrictions ‘may be imposed upon sovereign power.’27 Further, sanctions have a lesser
significant role in Bentham’s command theory than in Austin’s.28
Legal realism
25 J. Bentham, ‘Of Laws in General’ reprinted in MDA Freeman, Lloyd’s Introduction to Jurisprudence (8th edn
Sweet and Maxwell, London 2008) 273.
26 MDA Freeman, Lloyd’s Introduction to Jurisprudence (8th edn Sweet and Maxwell, London 2008) 251.

Realism is generally based on the perception that it is judges that make law, especially the
American version of realism. In making law through their judgments (Donough V
Stephenson – duty of care), judges are primarily affected by political considerations and
personal moral and ethical biases.
According to realists, there is no much logical symmetrical organization to law upon which
the correctness or wrongfulness of judicial decisions can be analysed. This was essentially
because the factors that actually determined decisions arrived at by judges were actually
influenced by non-legal factors e.g. political considerations, personal biases etc.
Feminism
A fundamental aspect of feminism is the analysis of the extent to which the legal system
reflects and reinforces a male perspective. It includes an analysis of how women’s differences
from men should or should not be reflected in legal rules, legal institutions, and legal
education.29 Liberal feminism, seeks the equality of women and men through legal and
political reform. Liberal Feminists see the personal individual interactions between men and
women as the place from which to transform society and argue that no major change to the
structure of society is needed.30 Radical feminism is based on the view that the capitalist
hierarchy of society, which it describes as sexist and male-based, is the defining feature of
women’s oppression. Most radical feminists see no alternatives other than the total uprooting
and reconstruction of society in order to overthrow patriarchy and achieve their goals.31
Marxist feminism (socialist feminism), connects the oppression of women to Marxist ideas
about exploitation, oppression and labor. Socialist Feminists see the need to work alongside
men and all other groups, and to focus their energies on broad change that affects society as a
whole, and not just on an individual basis.32
Marxism
Marxism has been described as ‘a system of sociology, a philosophy of man and society and
a political doctrine.’33 The foundation of Marxism is the philosophy of Karl Marx (1818-
1883), an eminent social philosopher of German origin 34 and a Jew. One of the central ideas
of Marxism is that the state and law are instruments that make the exploitation of the working
29 MDA Freeman, Lloyd’s Introduction to Jurisprudence (8th edn Sweet and Maxwell, London 2008) 254
34 Brian Bix, Jurisprudence:Theory and Context (5 edn Sweet and Maxwell 2009 London) 273.

class (comprising of individuals that sell their labor for wages) by the ruling class, which
comprises of the owners of means of production and capital. According to Freeman:
‘Marx traced the origin of the state, as he did other social institutions, to the division of labor.
He saw the state as in contradiction to the real interests of all members of society. It was an
“illusionary community serving as a screen for the real struggles waged by the classes against
each other”. At each stage of production in history there was a political organization which
corresponded to that stage and which supported the interests of the then dominant class.’35
From a Marxist perspective, law is seen as being a tool that legitimizes and validates
the exploitation and oppression of the working class by the ruling class.
Conclusion
Conclusively criminal law arose to protect the interests of the society. It is an
embodiment of both moral sanctions and law. Depending on one’s position of law,
determination will then be independent.

References:
Brian Bix, Jurisprudence: Theory and Context (5 edn Sweet and Maxwell 2009 London)
MDA Freeman, Lloyd’s Introduction to Jurisprudence (8th edn Sweet and Maxwell, London
2008)
J. Bentham, ‘Of Laws in General’ reprinted in MDA Freeman, Lloyd’s Introduction to
Jurisprudence (8th edn Sweet and Maxwell, London 2008)
A. C. Ewing, The Morality of Punishment (Montelair, N. J.: Patterson Smith, 1970).
Burton M. Leiser, Liberty, Justice and Morals (New York: Macmillan Publishing Co. Inc.)
Chamelin N., Thomas A., Essentials of Criminal Law, (10th Edn, Prentise Hall)
Richard C. Fuller, Morals and the Criminal Law, 32 J. Crim. L. & Criminology 624 (1941-
1942)
Bilal Ahmad Malik, Friday Feature “Purposes of Punishment”, The Dawn (Lahore),
November 30, 2007.
V. D. Mahajan, Jurisprudence (Shan Book Corporation, 1-Turner Road near High Court,
Lahore, n.d.)
Aya Gruber, A Distributive Theory of Criminal Law, 52 Wm. & Mary L. Rev. 1 (2010),
Burton M. Leiser, Liberty, Justice and Morals (New York: Macmillan Publishing Co. Inc.),
Immanuel Kant, Philosophy of Law, tr. by Hastie (Edinburgh: T&T Clark), p. 198. Burton M.
Leiser, Liberty, Justice and Morals (New York:Macmillan Publishing Co. Inc.)

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