Authors: Farah Aziz Khalid, Faryal Mahmood, Fatima Idrees and Fazila Nawaz
ABSTRACT
This study focuses on the aims of criminal law with evaluation of
one of the major aim of criminal law that is promotion of respect for law. A
penal code with a single principle can never be a significant one. Therefore,
restricting aims of criminal law solely to respect of law will ultimately
paralyze the criminal law. Other than driving respect for law, criminal law
works for the rehabilitation of offender, ensures principle of equality to the
victim, secures the society for future harms, deter the offender for future offenses
and even creates hate for the act that is harmful for the society. In this
research we have thoroughly get the material from the primary source and
secondary source and have analyzed this statement examining the philosophies of
punishments and theories in criminal law. We come to conclude that the given
statement illuminates only a single hemisphere of criminal law circle and have
ignored other aims.
1.
INTRODUCTION
It won’t be a
wrong assertion to say that preservation for the respect of law is one of the
fundamental aims of criminal law, because criminal law ideally deals in public
sphere that ultimately covers the society, yet it is not the only purpose. As a
penal code with a single principle can never be a significant one. In civil and
criminal codes, both during the primitive and even in the modern times one of
main essence of the law itself is to drive the obedience and respect for law
from the citizens but rehabilitation of offender, ensuring principle of
equality to the victim, securing the society for future harms, deterring the
offender for future offenses and even to create hate for the act that is
harmful for the society is also delivered by the criminal law. Thereby,
limiting the aim of penal law solely to respect of law will automatically paralyze
the whole process of criminal justice system.
2.
TYPES OF TERRORISM BACKGROUND:
EMERGENCE OF SOCIETY AND AIMS OF CRIMINAL LAW
A simple
definition for society is given as “a group of peoples involved in persistent
social interactions, or a large social group sharing same social territory, for
religious, benevolent, cultural, scientific or other purposes. On the other
hand, a brief definition for law is stipulated as “set of rules and regulations
made for a state or a group of individuals.”[1]
Both society and law depends on
each other for their existence. The emergence of society settled rules and
regulations to govern the conduct of its members for the societal prosperity.
The persistent social interactions made it compulsory for the state to bind its
citizens to the laws drafted out by the state. Law and society represent the
intersection between societal development, norms, rules and practices and
functions of law and legal institutions. The first and most basic function of
law is to defend the societal integrity from evil, that is, those who would
seek to harm it for no good reason. From time to time, various societies have
drafted their criminal law keeping in mind the preservation of respect for law
through it. Thereby it has set out milestone cases and has encouraged
enlightening philosophies on it. However, through the criminal law other
purposes are also achieved for the benefit of the society.[2]
3.
EVOLUTION OF CRIMINAL LAW FOR THE RESPECT OF LAW
3.1.Respect of
Law through Criminal Law in the Primitive Time
Throughout the evolution of society, the scope and aim of criminal law has being expanded. In the primitive ages the purpose of criminal law was concentrated to teach and oblige the citizens to respect the law. For instance, the emperors were imposing harsh punishments to compel the citizens to obey the law. History is evident that in the early ages criminal law was applied with the several purpose one was to preserve respect for law. The severity of the criminal law in obliging the citizens to respect the law can be detected from the case of Socrates.
3.1.1.
Case I: Socrates sentenced to death
Ancient Greek philosopher Socrates 399 BC sentenced to death in Athens. He was executed for the difficulty to define crimes of refusing to recognize the Gods that were recognized by the state that was included in their law. His trial was before jury of 500. The council, found Socrates to be guilty. According to the Athenian criminal law, death penalty was administered for any act against the Gods. The early philosophers were also in favor of obeying and respecting the law no matter how severe it was. Thereby Socrates also stood of doing what the law commands and didn’t favor his supporters to escape from the prison. He respected the law of land and secured the aim of criminal in the land.[3]
3.2.Criminal Law
in Islam and its Aims
Islamic law was
the first to introduce different punishments related to various crimes
according to their various levels. This set out the boarder spectrum of aims of
criminal law and expanded the philosophies on it. Yet, the basic aim of
criminal law that is to secure the respect for law is made a compulsory duty on
the followers in the Islamic law. Omission of this duty not only brings
criminal liability in the material world but in the hereafter as well. In
explaining importance of respect and obedience to be on the right path Quran
state as, “O you believe, obey God and obey the messenger and those in charge
among you.”[4]
The disobedience to the showed
path of Allah brings the cruelty of the lawgiver. Thus, respect for the law is
the basic aim of the criminal law in Islam. However, it is not the sole purpose
of the criminal law. Islam has introduced different strategies for the aims and
application of the criminal law, according to the nature of the offence. As a
result, in the case of hudud and qisas crimes retribution is the main purpose,
while in case of tazir crimes deterrence is considered the main purpose.
Rehabilitation is also applied widely in Islamic world now a days, thus
criminal law in Islam is also not confine to just serving the respect for law
solely.[5]
4.
DEFINITION OF CRIMINAL LAW
WITH RESPECT TO ITS AIMS
Criminal law
concerned with the punishment of offenders who violate the law. Criminal law
deals with the behavior that can be taken as an offense against society where
immediate victim is an individual who is a member of the society itself. In
simple words crime can be defined as any act or omission which violates the law
and the law which punishes the person who commits crime is criminal law.[6]
4.1.Aims of
Western Criminal Law
Five objectives of criminal law widely accepted. These objectives of criminal law not only insure respect for the law but these also restore other major aims of the society. Especially, while practically applying these theories the judges not take in account the breach of law by the offender. Yet, the criminal punishments are applied with an aim of social prosperity and the judiciary in practice of finding other aims of the criminal law.
4.1.1.
Muhammad Siddique v. The State
The orbiter dicta in this
case figured out that “law is a dynamic process and a catalyst for social
change. Law must be change with the ever changing needs of society and that
serious crimes merit serious punishments to foster deterrence. It is observed
that justice system of crime and punishment which lacks the elements of
deterrence may loses its worth and credibility. The court has to draw a line
between serious offences with graver social ramifications and less serious
offences. In serious offences, acquittal in accordance with compromise
encourage the social trends which led to those crimes whereas upholding a
conviction would convey a social disapproval through the majesty of law. In
less serious offences, resultant acquittal with compromise may promote goodwill
and social harmony.”[7]
4.1.2.
Retribution
Main objective of retribution is that criminals ought to suffer in
some way for their crimes. The criminal is punished for violation of any
stipulated law. Thus, it basically drives respect for the law in general.
However, retribution renders other aims too. Certainly, retribution includes
elements of incapacitation, deterrence and rehabilitation. But retribution also
ensures that the guilty will be punished and innocent will be protected and
social balance restored which disturbed by crime. Basically, it asserts that
severity of punishment should be proportionate to wrongdoing committed. It
creates hate for the acts that are heinous for the society.[8]
4.1.3.
Deterrence
The main goal of deterrence is to stop offender by imposing a
sufficient penalty to discourage him for any criminal behavior. General
deterrence frighten the whole community by imposing a penalty on those who
commit offences. The threat of punishment will deter people from committing
further crimes and that reduces the ratio of crimes in the society. Aim of
respect for law is achieved through this theory as well as other purposes such
as to secure the society and to set an example for others not to do the same
offence is also what the theory aims for.
4.1.4.
Incapacitation
The supporters
of this theory of punishment advocate that offenders should be prevented from
committing further crimes either by their removal from society which may be
temporary or permanent or by some other method which restricts their physical
ability to reoffend in some other way. Incarceration is common method of
incapacitating offenders. However more severe forms such as capital punishment
are also used. The overall main aim of incapacitation is to prevent the most
dangerous or prolific offenders from reoffending in the community.[9]
4.1.5.
Rehabilitation
The purpose of
this theory is to transform an offender into a valuable member of society. It
is the processes which reduce the crime rate. Many people do crimes because
they learn it form the society. The idea purpose punishment refrain members from disturbing the norms of the society.[10]
4.1.6.
Restoration
This theory takes crime as more than breaking the law. It also takes in account the cause that harm people, their relationships and the community. Thus, a just response is used to address those harms as well as the wrong doing. With the agreements of the parties the best ways is to help them meet to discuss those harms and bring out a resolution for the problem. These resolutions sometimes bring changes in the lives and society.[11]
5.
ANALYSIS OF PUNISHMENTS WITH
RESPECT TO AIMS
Punishments are
a kind of institutionalized
cruelty used for social control or social obedience. Punishments are
imposed upon a person by authority of law after that individuals has been
determined to be a criminal offender. As in Hudson words punishments are “penalties authorized by the
state and inflicted by the state officials in response to crime.” One of
the major aims of criminal punishments is to compel the citizens to render
respect for the law, inconstancy of which can make them liable to harsh
punishments. The punishments create
fear in hearts that force the citizens to follow the law if not for the benefit
of the society then at least because of the fear.Other than respect for law there are
several other purposes of criminal law that are achieved through the
punishments. In order to achieve the maximum security for the society and to condemn the offence
Pakistani courts has brought a different prospective of application of
punishments, ignoring the lenient theories especially for highly rated
punishments.
5.1.Amjad Ali v.
The State
The court judgment explained that the purpose of sentencing is not limited to reform and rehab ilitate and “let hardened criminals be released in the name of leniency” but is “to make the hardened criminal an example for others so that sense prevailed in minds of masses that a criminal would receive his due if he committed a crime.”[12]
6.
PUNISHMENTS WITH AIM OTHER
THAN RESPECT FOR LAW
6.1.Death
Penalty
Death penalty
is institutionalized
practice that deliberately executes a person for his actual or supposed misconduct for
violating norms that warrant execution. Liability for the death penalty is mostly for gravest crimes such as murder, The Retributivists approach explain the purpose
of death penalty with the
principle of lex talionis, or “the law of retaliation,” an idea
popularly familiarized in the ancient and biblical phrase, “an eye for an eye
and a tooth for a tooth.” Punishments of death penalties are imposed not only
for the violation of law but for the purpose of revenge consequent from taking
life of someone, as a
callous consequence for
breaching basic rights of someone. Other than this death penalty also retain other members of the
society to refrain themselves from the most heinous acts that disturbs
the whole society. Kant has defended the purpose of death penalty on the principle of equality by
which proper, merited
amount and kind of punishment is determined for crimes.[13]
6.2.Life
Imprisonment
Imprisonment is the most complex punishment compare to all other punishments. As it affects prisoner’s material possession, such as job, livelihoods and total life time earning capacity of the prisoner. Psychological punishments in prison also badly affect the psyche of the prisoner. The purpose of life imprisonment according to the conservative approach is of deterrence and incapacitation. This supports that an offenders life in the prison must be painful enough to detain rational people from committing crime and badly affecting the peace and order of the society. Liberal approach supports the purpose of rehabilitation and reformation of the prisoner in the prison. Hence, the aim behind giving life imprisonment not sole protects the respect for law but gives protection, less possibility of committing the crime in future and hatred for the crime itself in the society.[14]
6.2.1.
Faqeer Muhammad v. The State
The court
reasoned that sentencing is meant to “create deterrence for the people, who had inclination towards crime”
and in order to reform offenders, a sentence should “neither be so severe that
offenders do not get in frustration, become desperate and hardened criminals,
nor should it be so mild that it encouraged the offender to commit the offence
again.”[15]
6.3.Fine
Fine is punitive and deterrent in its
aim. The purpose of imposing fine in the criminal law is to penalize the offender, compensate
the state for the offense, and deter any future criminal acts of the offender.
In Islamic law even the highest offences such as murder can be pardon if
the family of victim agrees to get the diyat and forgive the murderer.”[16]
7.
CRIMINAL LAW IN PAKISTAN: AIMS
AND APPLICATION
Criminal law
for any state is an important tool to redress violation of public rights. Some
actions are designated as crimes by each state as per the needs of respective
society. For this each state has its own criminal code.[17]
Similarly Pakistan has Pakistan Penal Code (PPC) which is the Act providing
general substantive criminal law relating to Pakistan. PPC defines offences and
provides for punishment to be given to the ones found guilty of such offences.[18]
It is very important to have knowledge of the reasons for making the effort in
terms of criminal law and the nature of the problem it addresses in order to
formulate the aims of criminal law.[19]
Principles and theories help in organizing a thought in any field similarly in criminal
law when we tend to define criminal in terms of respect for law as a single
root. By identifying and defining such a root, the ultimate goal of thought behind
is to help in deciding upon a course of action. In Pakistani criminal law as
well the question as to ultimate aim of criminal law for decision to be made in
concerned field cannot be addressed in an institutional vacuum. The answer to
question or common theory of criminal law can be explained in the context of
some specific and established procedure of decision. For this the evaluation
has to be done of constitutional provisions, actions of a legislature and the
role of judiciary and this tends to explain practical approach along with an
abstract idea. All these institutions are in Pakistan the main agencies where
decision are made to cater the crimes and defining respect for law as sole root
aids in maintaining workability and integrity of the system as a whole. No
doubt a complex of institutional ends is also considered while trying to unify
the whole system because of the complexity of substantive social ends. There
are numerous principle levels in Pakistan like many other states where decisions
in the criminal law are made. It is worthwhile in context of Pakistan to
discuss various levels involving different institutions as decision making
agencies separately to evaluate the aim of criminal law.[20]
7.1.Constitutional
Perspective and Criminal Law
Constitution of
Islamic Republic of Pakistan, 1973 aims to lay down a sound foundation for a
durable and tolerable social order. It provides general guidance to the
institutions of Pakistan and is the source of validation for every other law.
It is an example of supreme law of land which promotes respect for law in all
matters including the criminal law because it is essential to a good society.
Article 9 and chapter 16 of PPC of constitution provides protection to life.
Article 11 and Section 370 and 371 of PPC prohibit slavery and forced labor.
Articles 10 and Sections 54 & 167 of Criminal Procedure Code, gives
safeguard to arrest and illegal detention. Article 24 and Chapter 17 of PPC
provides for the protection of personal property. In other words constitutional
directions are materialized by system of criminal law.[21]
Article 12 provides protection against retrospective punishments which forms
the basis for legality of criminal law. Institutions cannot do things on their
will but in accordance with law as directed by provisions such as Article 10A
which grants protection to the rights of individuals in terms of fair trial.
Article 13 is against double jeopardy which is a principle of criminal law
enshrined section 300 of Code of Criminal procedures protect individuals from
getting convicted on same grounds twice.[22] All these matters which are under the ambit
of crime are subject to law. Constitution has the provision to guarantee us
that in all matters law is going to prevail and everyone including civil people
as well as government officials has to respect and abide by law in all matters
concerning criminal act or its treatment.[23]
7.2.Legislative
Perspective
In Pakistan
legislative role belongs to Majlis-e-Shoora. It has to deal with crimes in
advance before their commission with realization of constitutional prohibitions
or directions such as prohibition of ex post facto laws and bills of attainder.
Legislature does not deal with crimes by punishment and condemnation but only
by threat of condemnation and punishment. These enactments are always be
imposed by other agencies. Herein, crimes are dealt in by directions codified in
general terms. Initially these enactments have to be interpreted and abide by
the private persons who are the potential offenders to whom such provisions are
addressed. When breach of such provisions is there then both primary and
remedial parts of provisions must be interpreted and enforced by the various
officials such as trial judges and jurors, appellate judges, police,
prosecuting attorneys and probation, parole and prison authorities. Legislature
can only accomplish its purpose if involved agents have respect for law and
hence aims for so by enacting provision provisions against morally blameworthy
conduct.[24]
7.3.Judicial
Perspective
Judiciary has
also a main role in translating the aim of any criminal justice system. It is
the responsibility of the court that when an offender id found guilty it has to
interpret and proclaim what is right. The defendant is a major concern in
courts who is an individual but his needs cannot be allowed as against the
effects of his conduct on other persons as well as well-being of society
generally. After the guilt is proved first objective which is considered by
judges is overriding necessity of sentence addressing gravity of the
defendant's misconduct in particular society. Moreover, along with this, judge
aim at defendant's rehabilitation for making him responsible unit of community.
Community’s interests as well as defendant’s interest both are taken into
consideration while pronouncing a conviction. Judiciary practically promotes
respect of law in criminal cases by punishing the ones who are found guilty of
disrespecting the criminal law. This can be observed more clearly where the
defendant is guilty of crime in retaliation of some personal injury. Criminal
law prohibits the people to take justice in their hands; therefore, judiciary
treats the killing of an offender by private person as an offence and redresses
it accordingly to promote respect for law.[25]
8.
CRITICISM OVER STATEMENT
The concerned
is never denied as a whole. But the criticism arises on a point that it does
not elaborate other objectives which are subject of criminal law. Criminal law
as a whole does aim at respect for law but it is done through the
accomplishment of many other objectives. No penal code can be seen which can be
said to have a single basic principle. It is factual thing some kind of hurdle.
Even, it can be said that a penal code that reflects a single aim would be a bad
one. Critiques hold that along with respect for law, social purposes cannot be
ignored and effort to make single aim of criminal law can sacrifice other
important values.[26]
When
a particular crime is prevented, the purposes behind is avoiding the conviction
of the innocent as well as enhancing sense of security throughout the society
by promotion of respect for law. Analysis of the objectives suggested for the
criminal law commonly shows that each is complex and one cannot exclude others.
What matters and should be understood is the priority and relationship of
purposes which suggests multi-valued thinking rather than single valued
thinking. The problem with this criticism is its more reliance on
words ignoring the deeper meanings of statement. It is to be pondered that rehabilitation
of offenders, improving community's sense of right and wrong, the disablement
of offenders and just retribution ultimately aim at reduction in the number of
crimes by promoting respect for law. This is reason why taking law into one’s
own hand is also an equivalent heinous crime. Murder of the murderer also
amounts to an offence to promote respect for law as society as subjugated
before law to maintain peace and order.[27]
In case of Munasingh Arachchige v. The State, the court findings bring out that
“the goals of rehabilitation or reformation are particularly important when
dealing with first-time offenders such as teenagers.” More than severing
respect for the law, this theory gives an opportunity for the wrongdoers
rehabilitate themselves.[28]
9.
CONCLUSION
Criminal Law manages the “social order via the method of
discouraging undesired conducts and encouraging desired conducts by means of
the threat. The purpose of law cannot be restricted to respect for law only
because it also covers the purpose of deterrence, rehabilitation and else for
the prosperity of the society. Theories on criminal punishments and
philosophies on criminal have a wider scope that render different purposes of
criminal law that are necessary for the society.
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