Criminal Justice- Theories and Fundamental Principles

Abstract

Criminal Law is an instrument in the hands of State through which it maintains social order,
peace, security and safeguard an individual’s life, limb and property. It acts as a tool of social
control. Criminal justice is the system of practices and institution of government that upholds
social control, criminalize certain human conducts which are harmful to the public at large and
deter those who are potential criminals. Criminal justice system does not intend to punish the act
per se; it punishes the consequences of an act which are harmful or injurious to the interests of
the society which criminal law wants to preserve. Through the research work the researcher
intends to understand the underlying theories and fundamental principles of criminal justice
system and their relevance in the system. The scope and ambit of criminal justice is defined by
specificity, uniformity, politicality and punishment and it’s purpose is to prohibit a specific
human behavior in a specific time in the society. The researcher intends to understand the
underlying principles and theories which justify the sanctioning of punishments under criminal
justice system. Criminal justice system is the result of State policy and it brings with itself the
curtailment of individual liberty, punishment and stigmatization. The State must prevent and
punish such actions which are detrimental to the society and against the welfare of the State. At
the same time, the State must not unnecessarily intervene into personal liberties of individuals.
Thus a balance needs to be brought. Criminalization of human conduct (the process by which an
act or an individual is converted into a crime or a criminal) can be well understood with the
Minimalistic approach. The underlying principles of criminal justice system concentrates on
principle of individual autonomy, principle of harm and public wrong, minimalistic approach and
principle of welfare. As we know, a person who is accused of crime is put under the peril of his
life and liberty and thus certain safegaurds are provided to the accused. These safegaurds are
provided in the Constitution and International covenants and most of these principles are
embodied in criminal law viz: Principle of legality, Principle of Equality and Principle of
individual autonomy.
Contents
INTRODUCTION ............................................................................................................................................. 4
CRIMINAL JUSTICE ......................................................................................................................................... 4
SCOPE AND AMBIT OF CRIMINAL JUSTICE SYSTEM ...................................................................................... 5
PRINCIPLES OF CRIMINAL JUSTICE SYSTEM .................................................................................................. 9
PRINCIPLE OF LEGALITY............................................................................................................................. 9
PRINCIPLE OF EQUALITY ......................................................................................................................... 10
PRINCIPLE OF INDIVIDUAL AUTONOMY ................................................................................................. 12
PRINCIPLE OF HARM AND PUBLIC WRONG ............................................................................................ 12
MINIMALIST APPROACH ......................................................................................................................... 13
PRINCIPLE OF WELFARE .......................................................................................................................... 14
CONCLUSION
 LITERATURE REVIEW

(1) Burton, Kelley J. (2008) Taming the Unruly Criminal Law: Where do you Draw the
Boundaries of Criminal Conduct?
(2) Principles of Criminal Law-Julian Conway
(3) Principles of Criminal Law-Komilla Chadha
(4) THE 100-plus-YEAR-OLD CASE FOR A MINIMALIST CRIMINAL LAW (Sketch
of a General Theory of Substantive Criminal Law), Mike C. Materni.
(5) Criminalising Harmful Conduct: The Harm Principle, its Limits and Continental
Counterparts, Nina Persak
(6) DOUGLAS HUSAK,OVERCRIMINALIZATION:THE LIMITS OF THE
CRIMINAL LAW (Oxford Univ. Press 2008), Stuart P. Green
(7) Principles of Criminal Law, Andrew Ashworth and Jeremy Horder, (7th edition)
INTRODUCTION
Every society ensures the security to life, liberty and property. The primary function of a State is
to ensure social control, order and peace. Criminal law is an instrument in the hands of the State
through which it maintains social order, peace, security and safeguards an individual’s right to
life, limb and property. Thus, criminal law acts as an instrument of social control. Criminal law
defines those acts and omissions which constitute crime and imposes punishment on the
perpetrators. It also poses threat of punishment on those who are potent criminals. Criminal law
criminalizes human conduct. Criminal law prohibits a series of conducts which are harmful to
the public at large. Criminal law does not punish an act per se, it punishes the consequences of an
act which are injurious to the society at large. Those consequences are harmful to the values and
interests of the society that criminal law wants to preserve. Thus we see that Criminal law
revolves around crimes, criminalization, reforms etc. A crime is a harm which is the result of
human conduct which the sovereign power of the State intends to prohibit. It is an offence
committed by an individual and an individual is the basic unit of a society. The prohibition or
prevention against crime is done through punishment or threat of punishment. Before
criminalization of human conduct, the legislation has to look into certain factors viz:-

 It is absolutely necessary to create an offence

 The human conduct is of such seriousness that it should be brought under the
purview of criminal law
 The offence can be treated under an existing legislature or with some
alternative remedy
 The offence must be tightly drawn and specific and legally sound
 It must be enforceable in practice

CRIMINAL JUSTICE

The criminal justice system is essentially a maze of agencies and processes that seek to control
crime, minimize crime, and impose penalties for the commission of crimes. The system consists
of police, court, lawyers and correctional home. Criminal justice is the system of practices and
institutions that aim at upholding social control, deterring crimes, sanctioning those who violate
laws with criminal penalties and finally the rehabilitation efforts taken for bringing back the
criminals into mainstream society. The criminal justice system operating in different countries
are different. It largely depends upon the political and social culture of a country.

The criminal justice system is the result of State policy. It brings with itself criminalization of
human conduct which leads to curtailment of individual liberty and stigmatization. It leads to
certain consequences and sanctions certain punishments. Justifications behind those sanctions are
necessary because a person who is accused of crime is put under the peril of life and liberty.
Thus, criminal law provides certain safeguards to the accused which are based upon certain
principles. These principles are: the Principle of Legality, Equality, Individual Autonomy, Harm
& Public Wrong and Minimalistic Approach.

SCOPE AND AMBIT OF CRIMINAL JUSTICE SYSTEM

Victim Just
Criminal Oriented relief
Justice Accused Fair
Oriented Trial

Criminal justice system can be of two kinds where criminal justice system per se (CJS) and
criminal justice distributive system (CJDS). The former talks about legislating a criminal law,
enforcing it and to look into that no one violates it, if it is violated then it is ensured that
punishment is given to the wrong doer, but the latter describes that CJDS is about once the
wrong has been committed and when the state machinery comes into force and let the enforcing
of the law, investigation of the matter, trial and finally delivery of justice. The above smart art
depicts how the chariot of criminal justice system moves. Justice is a term which acts as an
untamed servant, which if not delivered properly might cause a huge loss to an individual and to
the society. Criminal justice system can move properly only when both the wheels move
simultaneously at equal pace.

Criminal law has three stake holders the state, the individual and the society, all their functions
and range are mentioned earlier. The state through one of its organ commonly known as
judiciary, delivers justice to both, the victim as well as the accused. Today’s criminal justice is a
two fold concept where on one hand it is about just relief to the victim on the other it is pro
accused to in terms of fair trial. The front wheel of the chariot is about the justice delivered to the
victim. Although losses suffered by an individual in terms of life and property can never be
compensated by others by any means, but it is seen that a victim gets a just relief to the loss he
had suffered. Victim oriented justice has wide impact, justice is to be done to direct as well as
indirect victim, direct victims are those, who had fall prey to the crime directly for e.g. in a rape
case ‘the woman’ who was physically and sexually assaulted is the direct victim; and indirect
victims are those who are closely related to the person upon whom the crime had been
committed, taking the above example in a rape case the indirect victims are the parents, husband
and children (in case of a married woman). It should be a speedy trial because as the proverb
goes, “Justice delayed is justice denied”. It is based upon certain theories like –1. Victim
Proneness - Environmental theory, Quantification of victim-proneness, Fundamental attribution
error and 2. Victim Facilitation

The second or back wheel of the chariot is concentrated to the thought that if victim is to be
given justice, then it should not be at the cost of taking away the accused’s rights of justice as an
individual. So, the accused is also entitled for certain justice. Prosecuting an offender is a social
need; it deters others from doing the same act or omission. As, Jago Russell says “Every person
accused of a crime should have their guilt or innocence determined by a fair and effective
legal process. But the right to a fair trial is not just about protecting suspects and defendants.
It also makes societies safer and stronger. Without fair trials, trust in justice and in
government collapses.” 1 One of the most important things that we should remember is the
person is accused and not proven guilty, so he is innocent till proved guilty. So, whatever wrong
a person had committed but he should never be denied of the principles of natural justice, i.e. he
should never be judged unheard. There is a possibility that in the absence of this concept an
innocent can be punished where justice is not delivered. A Fair Trial is the best means of
separating the guilty from the innocent and protecting against injustice 2 . In response to the
horrors of the Second World War, the United Nations was formed and set out the fundamental

1
Fair Trial Organization, The Right to Fair Trial, available at http://www.fairtrials.org/about-us/the-right-to-a-fair-
trial/ visited on 29th November 2015.
2
Ibid
rights of human beings in the Universal Declaration of Human Rights. The Right to a Fair Trial
was at its heart: “Everyone is entitled in full equality to a fair and public hearing by an
independent and impartial tribunal, in the determination of … any criminal charge against
him.” 3At the first instance it should be reformative theory, and then if it necessary it can be
retributive theory. The chance of reformation of an individual should never be negated. A chance
of reformation should be given to the offenders and this is the reason behind the correctional
homes are being established in every legal system of the world. Every individual can be punished
for the wrong he had committed; it is “an eye for an eye will make the whole world blind”,
where does one differ from the other? Here is the role of reformation, instead of retribution at the
first instance what we should emphasis upon especially for the first time offenders, is the chance
of reformation. We should always remember that “every saint had a past and every dacoit has a
future”.

When both the wheels will run simultaneously and at equal pace, then it can be concluded that
criminal justice system is efficient in terms of delivering justice.

THEORIES OF CRIMINAL JUSTICE SYSTEM

The main theories criminal justice System is based upon three tier theories

 Utilitarian Theory – Pleasure and Pain

 Theories behind Criminal Liability
 Theories behind Punishment

UTILITARIAN THEORY

This theory was proposed by Jeremy Bentham, the theory of pain and pleasure. This theory is a
guiding principle for the legislature while legislating the criminal laws in different countries.
According to this theory the legislators should measure the amount of pleasure an individual
gains while he had committed the crime upon another individual, and the amount of pain an
another individual had suffered while the first individual was committing a crime upon him. This
helps to judge the legislators, how much grave the crime is and what should be the quantum of
punishment. The two factors one should always keep in mind while using this theory is nature of
the crime and the circumstances under which the crime was committed.

3
Ibid
PUNISHMENT
The purpose of punishment ranges from education or rehabilitation to retribution or social
benefit.4 The basic nature of punishment should be that it must be capable of inflicting pain
upon the offender. The main jurisprudence behind punishment is that the offender must realize
the pain he had inflicted upon the victim. But, punishment should always be proportionate to the
crime and the amount of crime he had committed. No man should walk away easily after
committing a heinous offence; similarly no man should be punished cruelly for the trivial offence
he had committed. Punishment should be judicious in nature and it is framed by the state by
keeping the following theories in mind.

Deterrent theory - Deterrence has two purposes: (i) to restrain the wrong-doer from repeatedly
indulging in crime, and (ii) to set an example for others to deter and prevent them from
committing crimes or violating laws.

Prevention or Incapacitation - The idea behind this theory is to keep the offender away from
the society. The offenders are punished with death, imprisonment of life, transportation of life
etc.

Expiatory theory - Under this theory, it is believed that if the offender expiates or repents and
realizes his mistake, he must be forgiven.

Retributive theory - This theory underlines the idea of vengeance and revenge rather than that
of social welfare and security. Punishment of the offender provides some kind solace to the
victim or to the family members of the victim of the crime, who has suffered out of the action of
the offender and prevents reprisals from them to the offender or his family. The only reason for
keeping the offender in prison under unpleasant circumstances would be the vengeful pleasure of
sufferer and his family.

Reformative theory - The objective is to reform the behavior of the criminals. The idea behind
this theory is that no one is born as a Criminal. The criminal is a product of the social, economic
and environmental conditions. It is believed that if the criminals are educated and trained, they

4
"The Concept of Punishment", available at http://www.girlzillawrites.com/The_Concept_of_Punishment.html
visited on 30th November 2015. (author’s name unknown)
can be made competent to behave well in the society. The Reformative theory is proved to be
successful in cases of young offenders.

PRINCIPLES OF CRIMINAL JUSTICE SYSTEM

The system of criminal justice is conventionally concerned with safeguarding the society by
punishing the offenders. There is a belief that violence is to be inflicted by State and that should
be proportional to the act of the offenders. In all societies, irrespective of the diversity of
religious and moral beliefs and socio-political structures, the State’s role and indulgence in
criminal justice system is characterized by infliction of proportional violence for acts of
offenders. Throughout the globe, criminal justice system possesses a retributive character driven
by vengeance. One of the underlying reasons could be the general perception of people towards
criminals, that they are genetically felon and do not deserve leniency. According to Professor
Duff, a justification of criminalization will need to begin by specifying some values that can be
claimed to be public, as part of the polity’s self-definition and show how the conduct in question
violates the values or threatens the goods that criminal law wants to protect and argue that the
violation or threat is such that it requires or demands a public condemnation. Duff focuses on the
values that are violated and threatened by the criminal conduct of the offenders. However, it
must be remembered that criminalization of human conduct calls for justification. When
legislators create criminal law prohibitions, when police and prosecutors arrest suspects and
pursue charges against them, when juries or judges convict defendants, when judges impose
sentence upon the convicts and when jailors effect punishment in executing those sentences, all
of these conduct need justification. It is thus necessary to understand the ambit of criminal justice
and define that what kind of wrong falls within this ambit. The Wolfender Committee considered
homosexual activity as not a matter of concern of criminal law because it is to be assigned to
private sphere. Criminal Justice system is based on certain theories and principles as discussed
below:-

PRINCIPLE OF LEGALITY
This principle requires that the wrongdoer should be punished strictly within the prescriptions
provided by law. There should not be any discrimination regarding the application of criminal
law. The punishment for the crime should be in accordance with the pre-existing legal provision.
One cannot be held to be criminally liable for producing a harmful consequence if such harm is
not declared as a prohibited one by legal classification. This principle has developed from the
European maxim of Nullum crimen, nulla poena sine praevia lege poenali i.e. When no crime is
committed, no punishment can be imposed. There can be no crime or punishment without a pre-
existing penal law that prohibits the crime. Thus, the conduct must be deemed to be a crime
before the act is committed. Another Latin maxim which is important for the principle of
Legality is Nullam crimen sine lege, nulla poena sine lege i.e. there can be no crime or
punishment except in accordance with a fixed pre-determined Law. This principle provides the
fundamental defense to criminal prosecution. The principle aims at balancing the consideration
of fairness towards an accused against other objectives viz: condemnation of brutal acts, ensuring
individual accountability, the preservation of order and creating deterrence.

The principle of legality is formulated in human rights instruments. It is argued by various jurists
that the formal science enshrined in the principle of legality must give way to the substantive
justice of the need to convict particular accused for reprehensible acts. The principle of legality
must focus on reasoning habits, the habit that lead us to breach our fundamental principles, such
as legality.

PRINCIPLE OF EQUALITY
By principle of equality it means all men are born equal and must be treated equally. This
principle is guaranteed under all modern constitutions of the world. The formulation of equality
gives rise to certain derivations viz:-

 Equality means denial of special privilege or status in the sphere of law’s enforcement.
 Equality means all are subject to the ordinary law of the land
 Equal access is enjoyed by all to society’s legal tribunals
 All are entitled to impartiality in the administration of justice
 Among equals, the law should be equal i.e like should be treated alike
 There should be no special privilege in the litigation in favor of a particular class
 Law should define special public powers

The principle of equality is used in procedural sense so as to mean that no person or class is
above law and the Rule of Law should be enforced against everyone impartially and without any
distinction. The principle of equality when applied in the field of criminal law means two things:
All individuals may claim the same legal protection if they have been injured by a crime, and All
individuals who have come into conflict with law must be treated equally and tried exclusively in
accordance with the provisions of law they have infringed (regardless of their race, colour,
religion, caste, sex, social position etc.)

However, there are certain exceptions to the Principle of Equality. These are :-

 Immunities sanctioned by public international law

 Immunities sanctioned by constitutional law
 Requirements of individualization of criminal justice

Immunity sanctioned by public international law: Certain persons enjoy diplomatic immunity
under criminal law. They are foreign sovereigns, ambassadors and diplomats, warships of
foreign countries etc. They are exempted from liability of municipal courts of the state. They are
immune from jurisdiction of local criminal courts.

Immunity sanctioned by constitution: By immunity sanctioned by constitution it means that such

cases which are provided in the constitutional law of different countries prescribing immunities
shall be binding upon the courts and prosecution. For eg: The Indian Constitution provides
certain immunities in favor of the members of the Houses.

Requirements by individualization of criminal justice: The approach of criminal law is based on

the nature of the crime problem in hand. Certain differences may be made in the treatment of the
criminals depending upon the circumstances which are purely personal to the criminal. Immunity
may be sanctioned on the basis of that. For eg: age, mental conditions or antecedents etc. These
differences do not contradict the principle of equality because they are based on considerations
which affect the liability of punishments. Principle of individualization may relate to conditions
in which the crime was committed. For eg: at night. It may relate to the age of the offender. It
may relate to the fact as to whether the offender is a first offender or a habitual one. Also, special
situation may arise when court deals with persons acting under special duties. For eg: public
servants. As we know, criminal law in India provides for suspension of death sentence passed on
a pregnant woman while she continues to be in that state. These are the exceptions to the
principle of equality.
PRINCIPLE OF INDIVIDUAL AUTONOMY
Individuals in general have the capacity and free will to make meaningful choices. But, criminal
law is allowed to interfere with an individual’s freedom to a certain extent. The principle of
individual autonomy aims at looking into those interests which warrant the use of criminal law to
interfere with one’s freedom. The principle of individual autonomy regards that all the
individuals should be respected and treated as persons who are capable of choosing their own
acts and omissions. H.L.A Hart’s principle on punishment and responsibility is based on the
principle of individual autonomy. It says that individuals should not be held liable unless he had
the capacity and fair opportunity to do otherwise. Joseph Raz gives certain features of the
principle of individual autonomy as follows:-

 Protection and promotion of positive freedom

 The State has the duty not only to prevent the denial of freedom, but also to promote it by
creating necessary conditions of autonomy.
 One may not pursue any goal by any means which infringe the autonomy of others.
 A minimalistic approach should be there to use the criminal law

Thus we understand that autonomy is the capacity of self determination. The principle of
autonomy lies on the fact that one should be free from coercion in deciding to act. However, it
can be over-ridden by competing moral considerations. For eg: If an individual’s choice
endangers public health or it contains potential harm toward others, that autonomy may be
restricted.

PRINCIPLE OF HARM AND PUBLIC WRONG

The principle of harm and public wrong states that an immoral conduct cannot be punished if it
does not lead to an injury or threat to injury to the society. An immoral conduct which possesses
threat of injury or causes actual injury can be brought under the purview of criminal law.
According to Mill, the only purpose for which power can be rightfully exercised over any
member of a civilized community against his will is to prevent harm to others. Here, his own
good, physical or moral is not sufficient to warrant. He added that neither law nor moral
condemnation be used to alter the behavior of human beings unless and until such behavior is
causing harm to other people. Furthermore, he stated that the harm principle does not apply
universally. There are circumstances where a society is justified to interfere with what someone
is doing even if that does not harm others. Mill as an Utilitarian stated that observing harm
principle will be better for a society and the people in it than not observing it.

The Harm Principle states a necessary condition, but not sufficient condition for interfering with
people’s action. An action must cause harm if it is to be prohibited. Mill concentrated in the
general interest of the society and said that society should interfere with someone’s actions when
they cause harm and interfere with them is necessary for the general interest of the society. The
Harm Principle applies to omissions or inactions. It also applies to actions that harm others.
Society can use power to compel people for going certain things which they failed to do. For eg:
Society can compel people from preventing attack against the society and not doing that can be
declared as illegal.

According to Mill there is a close relation between the principle of harm and public wrong and
Utilitarianism. Many rules of morality are based on the principle of utility. Those actions which
are not in the general interest of the society are called immoral and those which are in the general
interest of the society are called moral.

MINIMALIST APPROACH
This principle emphasizes on the fact that the State must strive to protect and promote human
rights. However, State under a democratic set-up may infringe upon the human rights of an
individual for public good. Another feature of Minimalistic approach is that every person has the
right not to get punished. The burden of proof in case of criminal conduct lies upon the
prosecution. The Minimalistic Approach emphasizes on the fact that crimininalization must be
used as the last resort. Other informal means to control the unacceptable behavior must be
invoked first and then criminal law can be invoked. Also, criminalization of a human conduct
should not be done if the effects of such are as bad as or worse than the conduct itself. The
minimalist approach is based on a particular conception of the criminal law and its relationship
to the principles of autonomy and welfare and to other forms of social control. Its four main
components are a) the principle of respect for human rights, b) the right not to be subjected to
State punishment, c) the principle that the criminal law should not be invoked unless other
techniques are inappropriate, and d) the principle that conduct should not be criminalized if the
effects of doing so would be as bad as, or worse than, not doing so. The first point is that a
minimalist approach to criminalization should respect human rights protections. Thus, for
example, any criminal laws should respect freedom of expression, freedom of assembly and
association, freedom of thought and religion, the right of privacy, and the right not to be
discriminated against in any of those four rights etc. Husak argues that we should recognize a
right not to be subjected to State punishment, and that this flows from the social significance of
the public censure involved in conviction and from the sacrifice of human rights usually entailed
by the imposition of punishment. The element of public censure and the overriding of other
rights mean that strong justifications for criminalizing conduct are called for, and that the burden
of proof should lie on those who would impose criminal liability. The criminal law is a censuring
and preventive mechanism, but there are others. Morality, social convention, and peer pressure
are three informal sources of control, and in many spheres it seems preferable to leave the
regulation of certain unwelcome behavior to those forces. Within the law itself, there are at least
two other major techniques in addition to criminalization: there is civil liability, best exemplified
by the laws of tort and contract, and also there is administrative regulation, which includes such
measures as licensing and franchising. Less serious misconduct is more appropriately dealt with
by the civil law, by administrative regulation, or even by introducing a new category of non-
criminal financial levies. The criminal law should be reserved as a legislative technique of last
resort, used only for seriously wrongful or harmful conduct. The fourth component of the
minimalist approach is the principle of not creating a criminal offence, or set of offences, where
this might cause greater social harm than leaving the conduct outside the criminal law, or where
the prohibition is unlikely to be effective.

PRINCIPLE OF WELFARE
The principle of autonomy seems to suggest that individual rights should be given high priority
in the legal structure; the principle of welfare recognizes the social context in which the law must
operate and gives weight to collective goals. The principle of welfare laid stress on the fact that
the State must strive to reach a balance between individual rights and decisions of the
community. The legal structure of the country should strive towards promoting individual rights.
However, the decisions of the community can invoke individual rights and hence, a series of
rights should be brought under the purview of law. The principle of individual autonomy on the
other hand gives priority to individual rights in the legal structure. Clearly there are conflicts
between the two principles, but that may not always be the case. If the principle of autonomy is
taken to require a form of positive liberty rather than merely negative liberty then the principle of
welfare may work towards the same end by ensuring that citizens benefit from the existence of
facilities and structures which are protected by the criminal law, even though it is the last resort.
Some criminalization may therefore be accepted as the only justifiable means of upholding
certain social practices as necessary for the general good.