One can view criminalization as a procedure deployed by society as a preemptive harm-reduction device, using the threat of punishment as a deterrent to anyone proposing to engage in the behavior causing harm. The State becomes involved because governing entities can become convinced that the costs of not criminalizing (through allowing the harms to continue unabated) outweigh the costs of criminalizing it (restricting individual liberty, for example, to minimize harm to others). Criminalization may provide future harm reduction at least to the outside population, assuming those shamed or incarcerated or otherwise restrained for committing crimes start out more prone to criminal behaviour. Likewise, one might assume that criminalizing acts that in themselves do not harm other people (“victimless crimes”) may prevent subsequent harmful acts (assuming that people “prone” to commit these acts may tend to commit harmful actions in general). Some see the criminalization of “victimless crimes” as a pretext for imposing personal, religious or moral convictions on otherwise productive citizens or taxpayers.
States control the process of criminalization because:
(i) Even if victims recognize their own role as victims, they may not have the resources to investigate and seek legal redress for the injuries suffered: the enforcers formally appointed by the State often have better access to expertise and resources.
(ii) The victims may only want compensation for the injuries suffered, while remaining indifferent to a possible desire for deterrence.
(iii) Fear of retaliation may deter victims or witnesses of crimes from taking any action. Even in policed societies, fear may inhibit from reporting incidents or from co-operating in a trial.
(iv) Victims, on their own, may lack the economies of scale that could allow them to administer a penal system, let alone to collect any fines levied by a court. Garoupa & Klerman (2002) warn that a rent-seeking government has as its primary motivation to maximize revenue and so, if offenders have sufficient wealth, a rent seeking government will act more aggressively than a social-welfare-maximizing government in enforcing laws against minor crimes (usually with a fixed penalty such as parking and routine traffic violations), but more laxly in enforcing laws against major crimes.
(v) As a result of the crime, victims may die or become incapacitated.
1. Labelling Theory
The label of “crime” and the accompanying social stigma normally confine their scope to those activities seen as injurious to the general population or to the State, including some that cause serious loss or damage to individuals. Those who apply the labels of “crime” or “criminal” intend to assert the hegemony of a dominant population, or to reflect a consensus of condemnation for the identified behavior and to justify any punishments prescribed by the State (in the event that standard processing tries and convicts an accused person of a crime.
2. Natural-Law Theory
Justifying the State’s use of force to coerce compliance with its laws has proven a consistent theoretical problem. One of the earliest justifications involved the theory of natural law. This posits that the nature of the world or of human beings underlies the standards of morality or constructs them. Thomas Aquinas wrote in the 13th century: “the rule and measure of human acts is the reason, which is the first principle of human acts”. He regarded people as by nature rational beings, concluding that it becomes morally appropriate that they should behave in a way that conforms to their rational nature. Thus, to be valid, any law must conform to natural law and coercing people to conform to that law is morally acceptable. In the 1760s William Blackstone described the thesis:
“This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.”
But John Austin (1790-1859), an early positivist, applied utilitarianism in accepting the calculating nature of human beings and the existence of an objective morality. He denied that the legal validity of a norm depends on whether its content conforms to morality. Thus in Austinian terms a moral code can objectively determine what people ought to do, the law can embody whatever norms the legislature decrees to achieve social utility, but every individual remains free to choose what to do. Similarly, Hart (1961) saw the law as an aspect of sovereignty, with lawmakers able to adopt any law as a means to a moral end. Thus the necessary and sufficient conditions for the truth of a proposition of law simply involved internal logic and consistency, and that the state’s agents used state power with responsibility. Ronald Dworkin (2005) rejects Hart’s theory and proposes that all individuals should expect the equal respect and concern of those who govern them as a fundamental political right. He offers a theory of compliance overlaid by a theory of deference (the citizen’s duty to obey the law) and a theory of enforcement, which identifies the legitimate goals of enforcement and punishment. Legislation must conform to a theory of legitimacy, which describes the circumstances under which a particular person or group is entitled to make law, and a theory of legislative justice, which describes the law they are entitled or obliged to make. Indeed, despite everything, the majority of natural-law theorists have accepted the idea of enforcing the prevailing morality as a primary function of the law. This view entails the problem that it makes any moral criticism of the law impossible: if conformity with natural law forms a necessary condition for legal validity, all valid law must, by definition, count as morally just. Thus, on this line of reasoning, the legal validity of a norm necessarily entails its moral justice. Natural-law theory therefore distinguishes between “criminality” (which derives from human nature) and “illegality” (which originates with the interests of those in power). Lawyers sometimes express the two concepts with the phrases malum in se and malum prohibitum respectively. They regard a “crime malum in se” as inherently criminal; whereas a “crime malum prohibitum” (the argument goes) counts as criminal only because the law has decreed it so. It follows from this view that one can perform an illegal act without committing a crime, while a criminal act could be perfectly legal. Many Enlightenment thinkers (such as Adam Smith and the American Founding Fathers) subscribed to this view to some extent, and it remains influential among so-called classical liberals and libertarians.
3. Common Law
Under the common law of England, crimes were classified as either treason, felony or misdemeanour, with treason sometimes being included with the felonies. This system was based on the perceived seriousness of the offence. It is still used in the United States but the distinction between felony and misdemeanour is abolished in England and Wales and Northern Ireland.
4. Causes and Correlates of Crime
Many different causes and correlates of crime have been proposed with varying degree of empirical support. They include socioeconomic, psychological, biological, and behavioral factors. Controversial topics include media violence research and effects of gun politics. Emotional state (both chronic and current) have a tremendous impact on individual thought processes and, as a result, can be linked to criminal activities. The positive psychology concept of Broaden and Build posits that cognitive functioning expands when an individual is in a good-feeling emotional state and contracts as emotional state declines.
5. Crimes in International Law
Crimes defined by treaty as crimes against international law include:
(i) Crimes against peace (vi) Crimes of apartheid
(ii) Forced disappearance (vii) Genocide
(iii) Piracy (viii) Sexual slavery
(iv) Slavery (ix) Waging a war of aggression
(v) War crimes
6. Religion and Crime
Religious sentiment often becomes a contributory factor of crime. In the 1819 anti-Jewish riots in Frankfurt, rioters attacked Jewish businesses and destroyed property. Different religious traditions may promote distinct norms of behaviour, and these in turn may clash or harmonise with the perceived interests of a state. Socially accepted or imposed religious morality has influenced secular jurisdictions on issues that may otherwise concern only an individual’s conscience. Activities sometimes criminalized on religious grounds include (for example) alcohol consumption (prohibition), abortion and stem-cell research. In various historical and present-day societies, institutionalized religions have established systems of earthly justice that punish crimes against the divine will and against specific devotional, organizational and other rules under specific codes, such as Roman Catholic canon law.
7. Military Jurisdictions and States of Emergency
In the military sphere, authorities can prosecute both regular crimes and specific acts (such as mutiny or desertion) under martial-law codes that either supplant or extend civil codes in times of war. Many constitutions contain provisions to curtail freedoms and criminalize otherwise tolerated behaviors under a state of emergency in the event of war, natural disaster or civil unrest. Undesired activities at such times may include assembly in the streets, violation of curfew, or possession of firearms.
8. Employee Crime
Two common types of employee crime exist: embezzlement and wage theft. The complexity and anonymity of computer systems may help criminal employees camouflage their operations. The victims of the most costly scams include banks, brokerage houses, insurance companies, and other large financial institutions. Nationally it is estimated that workers are not paid at least $19 billion every year in overtime and that in total $40 billion to $60 billion are lost annually due to all forms of wage theft. This compares to national annual losses of $340 million due to robbery, $4.1 billion due to burglary, $5.3 billion due to larceny, and $3.8 billion due to auto theft in 2012. In Singapore, as in the United States, wage theft was found to be widespread and severe. In a 2014 survey it was found that as many as one-third of low wage male foreign workers in Singapore, or about 130,000, were affected by wage theft from partial to full denial of pay.