Crimes and torts

In secular systems of law legislators, government ministers and judges decide what amounts to legal wrongdoing. The wrongs they define are of two sorts, crimes and torts. Crimes like murder and burglary are treated as wrongs against the state even though the victim is a private person; and those who commit them, if convicted, are punished by the state. Torts (also called delicts), like running someone over by negligent driving, are treated as wrongs against individuals. Those harmed by them can claim money from the wrongdoer as compensa­tion; but unless they take the initiative the state does not help them to get compensation. If, however, they do take the initiative, the state provides machinery (courts, judges and bailiffs) so that the wrongdoer will be forced to pay up.

Although the state recognizes these two types of wrong, crimes and torts, the same conduct can be made a crime or a tort or both. An example of conduct that is both a crime and a tort is obtaining money by fraud or, if it injures someone else, dangerous driving. When conduct is both a crime and a tort the two wrongs are treated as separate. So the wrongdoer may both be punished and have to pay compensation to the person harmed by his conduct.

Why does the state use two different methods of keeping wrong­doing within limits? The reason is that sometimes (e.g. when injury is caused in a motor accident) the victim has a strong incentive to get the wrongdoer to pay for the harm. The law of torts then gives the victim the right to take the initiative in claiming compensation. But at other times individuals have little interest in seeing the law enforced, or the chances of getting compensation are small. Most thieves, even if caught, are not worth suing; yet theft makes people insecure. The state therefore takes the initiative on behalf of the community. It makes theft a crime; and through the police, prosecutors, judges and prison officials it pursues and punishes the thief.

Crimes and torts look both to the future and to the past. They are meant to deter people from doing things in future that are seen as undesirable. They also seek to provide a remedy (punishment or compensation) if the threat hasn't worked. Two issues about crimes are discussed in this chapter. What type of conduct does and should the state make criminal? And under what conditions is it fair to hold someone guilty of a crime in a particular case?

12. What type of conduct amounts to a crime?

First, then, as to the type of conduct that is a crime. Legal systems largely agree about this. The state targets

(1) conduct that by causing or threatening harm creates insecurity;

(2) conduct that causes offence, and

(3) conduct that undermines the smooth working of society, its government and economy.

Laws make conduct criminal if by causing or threatening harm it creates a sense of insecurity. What counts as harm depends to some extent on what each society thinks is objectionable. But behaviour that strikes at people's lives and bodies, their property or the safety of the whole community is everywhere regarded as harmful.

To begin with people's lives and bodies, all countries make it a crime intentionally to kill another person (murder) or to wound them. It is also a crime to threaten someone in such a way that they think that they are about to be killed or wounded (assault). Equally or more disturbing is forcing someone to have sexual intercourse against their will (rape).

The state takes the view that these inroads on life and bodily security are too disruptive to be left solely to the victim or his family to take legal action. We all have an interest in other people not being murdered, wounded or raped, not only ourselves and our families. In practice, however, the state and its officials often cannot prosecute the wrongdoer unless the victim (for example the woman raped) reports what has happened and gives evidence against her attacker. Indeed, they may not want to prosecute unless this is what the victim wants.

The crimes mentioned are offences against our bodies or persons. Less disruptive but still of serious concern are offences against property. Property is an element of stability in people's lives, whether they are rich or poor. Theft is in all countries a crime and other ways of taking or threatening to take other people's money or goods without their consent, such as fraud, forgery, and blackmail, are treated as crimes too. Intentionally to destroy or damage someone else's property is also criminal.

Conduct that alarms and threatens to undermine society is not confined to harming persons or property. Public security is also important. Treason confronts the state and the community with the danger of foreign invasion or destabilisation. Public disorder threatens revolution, rioting or at least widespread unrest.

Conduct that does not threaten the safety of people or property may nevertheless give serious offence. For example, excessive noise or smell, public nudity and prostitution may create such annoyance that the state has to intervene. Offence is not quite the same as harm, since what is offensive depends entirely on how people react to the behaviour in question. If society became nudist public nudity would no longer give offence and there would no longer be a case for making it a crime.

Дата добавления: 2015-07-20