11 March 2012 Written by  Glory Nirmala K. and Serkaddis Zegeye

Criminal Law, Private law and Morality-Distinguished


For a proper appreciation of the distinction between criminal law, civil law and morality, it is necessary to understand the “concept of wrongs” and their classification.

A wrong is an act forbidden by the society. In other words, it is a violation of rules, which are accepted by the society.  Society prohibits certain activities basing on the general conscience of the society, which is found in the values and norms of the society.  The concept of morality explains the values of a particular society.  This means that a given society declares certain acts, which offend the moral conscience of that society as forbidden. These forbidden acts can be described as moral wrongs. However, All moral wrongs are not wrongs in the legal sense.

Since all violations of law cannot be characterized as crimes, there is a necessity to identify the particular class of violations or forbidden acts or wrongs, to understand the concept of crime.  Therefore, we shall proceed to broadly classify the body of wrongs.

Classification of Wrongs:

Since all violations of law cannot be characterized as crimes, there is a necessity to identify the particular class of violations or forbidden acts or wrongs for the purpose of defining what ‘crime’ is.

Wrongs

(Acts forbidden by the Society)

Moral wrongs              Legal Wrongs

(Interference of law is considered              (where the interference of law is necessary)

unnecessary)

Civil wrongs          Criminal wrongs

(Law interferes at the     (State as a matter of right  interferes in most of the cases)

instance of the injured party)


ü  Moral wrong:

This is a wider term including a wide range of reprehensible acts, which tend to reduce human happiness.  There is a long list of such acts including ingratitude, hard-heartedness, absence of natural love and affection, habitual idleness, sensuality, pride and all such sinful thoughts.  Such acts are called wrongs and are looked upon with disapprobation. The evil tendencies of these anti-social acts widely differ in degree and scope. Some of these wrongs such as lies, refusal to give a morsel of food to save a fellow human being, omission on the part of a swimmer to rescue a man from drowning, etc., are not considered sufficiently serious for the notice of law and are merely disapproved. These acts are considered as moral or ethical wrongs and are checked to a great extent by social and religious laws. Sinful thoughts and dispositions of mind might be the subject of confession and penance but not of criminal proceeding.

ü  Legal Wrong:

The category of wrongs such as nuisance, deceit, libel (defamation in visual form) robbery, dacoity, murder, rape, kidnapping, etc., are considered to be sufficiently serious for legal action. The state may respond to any of such acts in two different ways: (1) Where the state takes action against the wrong-doer at the instance of the injured party, it is called the civil wrong, and (2) Where the state by itself proceeds against the wrong-doer, the wrong is referred to as criminal wrong.

  • Civil Wrong:

Where the magnitude of injury is supposed to be more concentrated on the individual, the state, at the instance of the injured individual or the group, directs the wrong doer to compensate the injured in terms of money as in the case of deceit, libel, nuisance, negligence, etc. This type of wrong is called civil wrong or Tort, for which civil remedy is open to the injured.

  • Criminal Wrong:

Where the gravity of the injury is more directed to the public at large (including the specific victim), the state by itself can take a direct action against the wrong-doer. In this instance public condemnation or provision for compensation is ineffective as in the case of moral or civil wrong. Wrongs, like dacoity, murder, kidnapping, sedition, treason and the like, disturb the very fabric of law and order and jeopardize the state’s existence or create a wide spread panic. Therefore, the state stresses the necessity of punishing the wrong-doer rather than concerning itself with the question of payment of compensation to the injured party by the wrong-doer. This category of wrongs is called as “public wrongs” or “crimes” for which criminal proceedings are instituted by the state and the culprit is punished.


  • Relation between Morality and Criminal Law:

Though morality and law can be precisely distinguished, they are not totally distinct phenomena. They are related to each other in that they both aim at maintaining social order. There is a category of wrongs towards which law and morality react with common hatred. They are offences like murder, rape, arson, robbery, theft, etc. Law and morals powerfully support and greatly intensify each other in this matter. Everything that is regarded as enhancing the moral guilt of a particular offence is recognized as a reason for increasing the severity of the punishment awarded to it.

Sir Stephen year stated, “the sentence of the law is to the moral sentiment of the public in relation to any offence what a seal is to hot wax”. When a member of the society does a wrong involving serious moral guilt, the moral sentiment of the society gets offended so seriously that the whole society waits in all its eagerness to see that the offender is punished severely. This general disapprobation excited against the wrong doer may pass away with time.  But the fact that he has been convicted and punished as a “thief” or “murderer” or “cheat” or “rapist” stamps a mark upon him for life.  Thus the moral sentiment of the public gets converted into a permanent final judgment what might otherwise be a transient sentiment.

Thus, according to the author the criminal law proceeds upon the principle that “it is morally right to hate criminals and it confirms and justifies that sentiment by inflicting upon criminals punishments which express it.”  However, the recent tendency of the reformists is on the opposite lines, they say “hate the crime not the criminal” basing their argument on the Gandhian philosophy i.e. “hate the sin not the sinner”, because a criminal is not born, he is made. Different circumstances and experiences after his birth in the society become responsible for his becoming a criminal.  Thus, today the “Reformative Justice” is the philosophy of the state.

Cohen, in his article “Moral Aspects of the Criminal Law” (49 Yale L.J.989-990 (1940) observes “ …… what I wish to insist on is that the criminal law is an integral part of the legal system and is subject to same considerations which do and should influence the whole. More specifically, the criminal law cannot be distinguished from the rest by any   difference of moral principle. Some crimes, to be sure, are shocking; but there are many crimes that are felt to be much less reprehensible than many outrageous forms of injustice, cruelty or fraud, which the law does not punish at all, or else makes their perpetrator liable to money damages in a civil suit….”

Last modified on Wednesday, 02 May 2012 13:05