The state has a monopoly on behaviour usually deemed criminal. It murders, kidnaps, and locks up people. Sovereignty has come to be identified with
unbridled - and exclusive - exercise of violence. The emergence of modern international law has narrowed field of permissible conduct. A sovereign can no longer commit genocide or ethnic cleansing with impunity, for instance.Many acts - such as waging of aggressive war, mistreatment of minorities, suppression of freedom of association - hitherto sovereign privilege, have thankfully been criminalized. Many politicians, hitherto immune to international prosecution, are no longer so. Consider Yugoslavia's Milosevic and Chile's Pinochet.
But, irony is that a similar trend of criminalization - within national legal systems - allows governments to oppress their citizenry to an extent previously unknown. Hitherto civil torts, permissible acts, and common behaviour patterns are routinely criminalized by legislators and regulators. Precious few are decriminalized.
Consider, for instance, criminalization in Economic Espionage Act (1996) of misappropriation of trade secrets and criminalization of violation of copyrights in Digital Millennium Copyright Act (2000) – both in USA. These used to be civil torts. They still are in many countries. Drug use, common behaviour in England only 50 years ago – is now criminal. The list goes on.
Criminal laws pertaining to property have malignantly proliferated and pervaded every economic and private interaction. The result is a bewildering multitude of laws, regulations statutes, and acts.
The average Babylonian could have memorizes and assimilated Hammurabic code 37 centuries ago - it was short, simple, and intuitively just.
English criminal law - partly applicable in many of its former colonies, such as India, Pakistan, Canada, and Australia - is a mishmash of overlapping and contradictory statutes - some of these hundreds of years old - and court decisions, collectively known as "case law".
Despite publishing of a Model Penal Code in 1962 by American Law Institute, criminal provisions of various states within USA often conflict. The typical American can't hope to get acquainted with even a negligible fraction of his country's fiendishly complex and hopelessly brobdignagian criminal code. Such inevitable ignorance breeds criminal behaviour - sometimes inadvertently - and transforms many upright citizens into delinquents.
In land of free - USA - close to 2 million adults are behind bars and another 4.5 million are on probation, most of them on drug charges. The costs of criminalization - both financial and social - are mind boggling. According to "The Economist", America's prison system cost it $54 billion a year - disregarding price tag of law enforcement, judiciary, lost product, and rehabilitation.
What constitutes a crime? A clear and consistent definition has yet to transpire.
There are five types of criminal behaviour: crimes against oneself, or "victimless crimes" (such as suicide, abortion, and consumption of drugs), crimes against others (such as murder or mugging), crimes among consenting adults (such as incest, and in certain countries, homosexuality and euthanasia), crimes against collectives (such as treason, genocide, or ethnic cleansing), and crimes against international community and world order (such as executing prisoners of war). The last two categories often overlap.
The Encyclopaedia Britannica provides this definition of a crime: "The intentional commission of an act usually deemed socially harmful or dangerous and specifically defined, prohibited, and punishable under criminal law."
But who decides what is socially harmful? What about acts committed unintentionally (known as "strict liability offences" in parlance)? How can we establish intention - "mens rea", or "guilty mind" - beyond a reasonable doubt?
A much tighter definition would be: "The commission of an act punishable under criminal law." A crime is what law - state law, kinship law, religious law, or any other widely accepted law - says is a crime. Legal systems and texts often conflict.
Murderous blood feuds are legitimate according to 15th century "Qanoon", still applicable in large parts of Albania. Killing one's infant daughters and old relatives is socially condoned - though illegal - in India, China, Alaska, and parts of Africa. Genocide may have been legally sanctioned in Germany and Rwanda - but is strictly forbidden under international law.
Laws being outcomes of compromises and power plays, there is only a tenuous connection between justice and morality. Some "crimes" are categorical imperatives. Helping Jews in Nazi Germany was a criminal act - yet a highly moral one.
The ethical nature of some crimes depends on circumstances, timing, and cultural context. Murder is a vile deed - but assassinating Saddam Hussein may be morally commendable. Killing an embryo is a crime in some countries - but not so killing a fetus. A "status offence" is not a criminal act if committed by an adult. Mutilating body of a live baby is heinous - but this is essence of Jewish circumcision. In some societies, criminal guilt is collective. All Americans are held blameworthy by Arab street for choices and actions of their leaders. All Jews are accomplices in "crimes" of "Zionists".
