We are all bothered about crimes, but we also know that we can be harmed in ways that may not necessarily constitute a crime. What makes something a crime and something else not a crime, is not just a matter of law. It has a lot to do with social norms and preferences. In fact, law is only one of the tools in our struggle to prevent and contain crime, and certainly not the only such tool. In fact, it may not even be the best tool, or the most effective one …
Preventing crime has always been one of biggest
challenges for rulers, administrators and policy makers. This challenge has become magnified many fold by the enlarging role that the modern state has come to acquire in the last few centuries. We have reached a point, where we have begun to look at preventing crime as the sole responsibility of the state. Simultaneously, we also expect our freedom in every sphere of life, to continue and remain unhindered and unobstructed. Maybe it is time we spared a few moments to ponder over and understand what constitutes crime and how laws deal with them.Crime or its Absence in Animal Kingdom
In animal kingdom, crime does not exist, because everything is by animal instinct and the concept of fairness or justice does not exist. The bigger fish devours the smaller one and nobody complaints, not even the almighty god, who created both of them. It is ‘who gets an opportunity to do what’ that decides what ends up happening. There are certain norms of behavior there too. The mother animal does not eat its offspring. Many species organize themselves in groups and hunt and live together. Couples sometimes live together and even take care of their offspring, though mostly, it is the maternal partner, which assumes most of the responsibility. In most species of mammals, animals do not eat their own species. In certain more “socially evolved” species like bees and ants, there is a clear division of labor, and the ants and bees collect food for the whole group. However, all this is instinctive. There is nothing right, and there is nothing wrong. Nothing constitutes crime.
Crime in Early Human Societies
Crime has existed in human societies long before the concept of crime became part of the human lexicon. Even in the earliest tribal societies, there were norms and practices that were respected and followed almost like a rule. Members of a tribe stuck together and fought together against other tribes. Within a clan or a tribe, there were certain self-imposed norms, and a person breaking them could be either boycotted by the clan or even punished with violence. Attacking or killing a fellow member without provocation or out of greed would be unacceptable, and evoke response from society. If we compare this with the animal kingdom, what emerges as the underlying factor in making something unacceptable, is the expectation that this will not be done. The members of the clan expected that they will not be hurt by fellow members, and a breach of this trust was considered a crime. Notably, this expectation did not extend to enemy tribes and hence attacking, hurting and killing a member of the enemy tribe would not be seen as something wrong. In modern parlance, that would not constitute a crime.
Crime in More Evolved Ancient and Medieval Societies
As social norms became more strengthened, and as the conduct expected of a person in society became more clearly defined, there were restrictions placed on the conduct of individuals. Even if a person is hungry, he should not take away food from another by force. The recognition of property rights was an important hallmark of social evolution. Even if a person is angry with somebody, he cannot just kill that person, unless of course, there exists sufficient justification for such drastic retaliation. The concept of rights began to take shape in these early societies. In most evolving societies, family was the fulcrum on which social norms and traditions were developed, and its rules were equally strict. With strengthening of family as a social unit, infidelity came to be considered as unacceptable. With strengthening of family centered social norms, violation of sexual prohibitions family came to be considered as the most unacceptable crime, as it was considered an attack on the very underlying pillar on which the society was based.
The Concept of Social Contract
Underlying the concept of crime is the expectation that such action will not be undertaken by any member of the society. Whether it is violation of life and body, or family, or property, there is an unwritten understanding that people would not violate the rights of others. It can be termed as an unwritten “social contract”, a term that has often been used by eminent philosophers to denote the relationship of citizens with the state. This social contract of respecting mutual rights and welfare is a matter of trust that people first need to develop among themselves, before any expectation of its reinforcement can be entertained from the state.
Defining Crime as a “Violation of Social Contract” or a “Breach of Social Trust”
Thus, we can define crime as an act that violates the norms and rules that the society expects all its members to follow. These norms, traditions, practices and rules may not have the sanctity of a written law or code, and the state may not even be involved, yet, a violation of such social contract or a breach of the trust that society imposes will be considered a crime. What emerges is the fact that society considers an action as crime, depending upon its acceptable norms and practices of conduct, which are often referred to as “values”, “ethics” and “morality”.
Crime and Modern Laws
The need for laws in society arose because of many factors. The first was the evolution and strengthening of the state. State is not the same as society. In fact, the King can be too far away from the society and actually not even be required to follow social norms because of his superior position. But, when the social contract extends to the state, the state, having
monopolized all force, authority and violence, is expected to take upon itself the role of preventing crime. Actually, the state needs to do that to maintain its monopoly, as well as to gain legitimacy as the protector of its subjects. However, to be able to prevent what the society considers a crime, the state needs to define it in clear and unambiguous terms, by having a code or enacting a law.Second reason to have a law is the integration of societies into a common social unit under a state. In the absence of state interference, many communities can exist in the same neighborhood, each having its own set of social norms and its own perception of crime. A state usually cannot have multiple set of rules for difference subjects, and although, in certain spheres like marriage and inheritance, different rules for different communities may exist, the state prefers to have a single law for crime, in order to create strong deterrence to prevent it.
A third reason is the need for justice. Without state interference, society takes care of the criminal in its own ways depending upon the social cohesion and the power balance between the offender and the other members of the society. Hearsay plays a big role, social boycott is the primary punishment, and the social punishment is usually without any objective examination of the accusations. Witch-hunting exemplifies the shortcoming of this system. Clashes and violence between socially powerful groups can also erupt in such cases. By putting in place objective laws, and a detailed and supposedly unbiased process of enquiry into the accusations, the State obtains legitimacy for the punishments it hands to the criminals in the name of justice.
Limitations of Law in dealing with Crimes
In Laws, crimes need to be defined unambiguously. However, all forms of social trust cannot be codified. For instance, breach of trust in conduct is difficult to define. Similarly, damage to the image and reputation of a person, which can actually be as hurtful as physical injury, is also difficult to define. In particular, unexpected breach of trust in complex and sophisticated relationships, whether they be personal, family or commercial partnerships, are also not easy to define in laws.
The family dynamics can illustrate this aspect. Families were known for their reputation and family honor has traditionally been one of the greatest assets a person can possess. Indeed, the social hierarchy in most pre-industrialized societies was usually based on the respect accorded to a family, a tradition that has not become fully obviated even today. A member of the family conducting himself in a manner that tarnishes family image and reputation can do immense harm to the rest of the family members. In particular, indulgence of a member is conduct that is not considered as honorable by society can lead to strong retaliations from within the family or the clan. Since the biological integrity of the family is linked with the women folk of the family, any unacceptable behavior on their part can have very strong repercussions for the rest of the family members, both male and female, and such indiscretions can incite retaliations. In some societies, it can even lead to honor killings, which still exist in certain parts of the world, but are not acceptable under the laws made by the state. Clearly, there are several social spheres, where laws may not be very successful.
Another limitation of laws made by the State arises from the limitations of evidence and proof. In most judicial systems, the benefit of doubt goes in favor of the accused. The need to “prove beyond all reasonable doubts” can sometimes become the greatest loophole in the judicial procedure in delivering justice. In some cases, this need is carried to limits of absurdity, particularly regarding crimes, which usually take place when nobody is around to be a witness. No doubt, the modern judicial procedure is the best option that we have today for dealing with those accused of crimes. Yet, this system is far from perfect, often favors the accused, and when it fails, it fails with the authority of state behind it.
Lastly, there are limits to which state can be successful in monitoring every aspect of social life. There is a cost in investigating crime as well as in dealing with it by judicial means. Every system has its loopholes, and those who master them can become a facilitator of obstructing justice rather than it being the other way round. For every Prosecutor, there is a Counsel to defend the accused, and who among them prevails in their Courtroom struggle may actually have very little to do with truth or justice.
Thus, neither the definition of crime in law, nor the process for determining its existence under the laws made by the State is anywhere close to perfection, even though the laws and the modern judicial system of delivering justice is undeniably the best that we have … in particular, because it protects us from the State!
Epilogue: Are there Other Ways of dealing with Crime?
This brings us to the question as to whether there are other ways of dealing with crime. May be there are. The relatively low rate of crime in small communities in remote locations, where the State is conspicuous by its absence, strongly suggests that human societies can contain and prevent crime without resorting to State and its Laws.
It is a question that we all need to think about…. sooner or later…
