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CRIMINAL LAW 171
➔ Criminal law is unique in the way that the STATE is doing the punishing
o When people violate the common social contract it is then that the state’s
duty to step in
o State makes more neutral decisions than individuals
Why punish people?
➔ Deterrents = puts others off and the individual
➔ If there was no punishment the law would simply be a set of guidelines
➔ Infliction of harm onto the criminal- revenge
➔ Punishment should essentially prevent crime
o Literally: while in prison one cannot physically commit crime
➔ Rehabilitation for criminals
➔ Restorative justice
CRIMINALISATION
How does the state decide what conduct constitutes a crime?
Values and interests
➔ Think about the concept of punishing someone for putting themselves at risk- eg.
Not wearing a seatbelt
o Protecting public/community welfare
o Public welfare is mostly talking about regulations and statutory laws – ‘public
welfare offences’
o May not be harmful to other people- in this way the law has a paternalistic
duty
o There seems to be a movement away from various public welfare offences
▪ What you do in private where it doesn’t affect anyone else is not the
states problem- anti paternalistic view
➔ Values are protected by certain punishments
➔ Various examples include:
o Human rights -> rape ; right to life; right to property; right to bodily integrity
o Individual autonomy and responsibility
o Public welfare
o Maintenance of government of the state -> high treason
▪ 3 branches of state that need to be protected (executive, judiciary,
legislative)
▪ The state in itself needs to be protected
o Morality -> violation of a corpse
➔ A subjective approach to the law is really important – the understand the criminals
state of mind and reasons for their actions
➔ Blameworthy state of mind
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,CRIMINALISATION CONTINUED
The process whereby a competent lawmaker makes something a crime
➔ Defining a prohibiting something as a crime
➔ Goes further as to say this is not just a recommendation- there will be punishment
that follows should people act against societal interests
➢ Parliament can do this
➢ As can the common law
➢ We do not have a ‘criminal code’- we have a mixture of different sources for criminal
law
➢ We hardly ever have to go back to the old roman dutch law to find our laws- for
example there is no statute in SA that prohibits murder, fraud, theft- they all come
from the old sources and have been worked on by our judges and defined through
judicial precedent
➢ Parliament can intervene and make a common law crimes into a statute and make it
into legislation -eg of this is rape
o Parliament said that this common law definition was not enough and made
the definition of rape wider
o Eg abuse of authority constitutes rape
o All rape is now statutory rape
➢ Statutory law- legislation
➢ Statutory crimes and common law crimes are evenly weighted- depends on the facts
of the case
➢ The constitution is above all of these crimes- therefore the constitution can cancel
out any of these crimes if challenged successfully in court
What type of conduct should or is a crime?
➔ 2 ways to define- material definition and a procedural definition
➔ Conduct regarded as ‘inherently bad’ and or harmful?
➔ This is the material definition of a crime, however there isn’t really a real definition
of a crime that defines all crimes
➔ There is another way of defining crime:
o Focuses on the consequences of a crime
o Says if you can be prosecuted and be punished for your conduct then it
constitutes a crime
o This is the procedural definition
o Doesn’t look at the actual things you have done – it looks at the
consequences of the things you do
o For example a major having sex with a minor constitutes a crime – even
though this might not be ‘evil’ or inflict harm- it is still punishable and
therefore is a crime
2
,Over-criminalisation:
Making something a crime too often
With the effect of:
➔ Lessening criminal law’s authority
o People lose their respect for the law
➔ Stigmatising individuals as criminals
o The cost benefit analysis
o Make sure that the criminal record that follows you isn’t heavier than the
crime that was actually committed
o A criminal record follows you forever- the social punishment is serious
o Want to make sure that people are found guilty of the right sigma
➔ Encourage crime
o A service where theres a massive supply and demand, but its not legal
o Eg. Drugs, prostitution, rhino horn
o They will carry on even if they are prohibited
o The fact that these are illegal means that there is no regulations of the
services- therefore means there is a lot of money in the blackmarket and
because they are expensive there is an increase in crime because for example
drug addicts might steal to get money to buy drugs
o Eg. Back street abortions when abortion was illegal- now that its legal it can
be done safely and without crime taking place
o The law should consider regulating
➔ Overloading the criminal justice system
o Should we not save our courts the time and energy for more serious cases
and offences?
o Parliament should think really carefully before criminalising something- do
not want to water down the system
Punishment theories
In punishing people sometimes it is okay to infringe on peoples rights, but they
have to be justified.
➔ Eg. A persons s12 right to be free from all forms of violence might be infringed upon
when in prison
➔ Justifying punishment for a crime
o Eg. Imprisonment; paying a fine; community service; suspended sentence;
others?
2 different way of seeing punishment:
Must consider both- not just one or the other
3
, 1. Absolute or retributive theories
a. Says punishment because punishment is deserved
b. Retribution is slightly different to revenge
c. Retribution- want to restore this balance. NOT vengeance
d. Appeasement would be making the victim feel better- revenge (don’t want
this 100%)
e. We want this idea of ‘just desert’
i. Balance between the harm you must suffer for committing a crime
and the severity of the crime
f. This theory does not = harsh punishment
g. The punishment must fit the crime. If you use this theory to justify a
punishment you must ensure that the punishment fits the crime
2. Relative or utilitarian theories
a. Punishment for other reasons not just for the sake of punishing
b. Useful- something that serves a purpose
c. Prevention or incapacitation
i. Literally in prison
ii. House arrest
iii. Death sentence
iv. Suspension of licenses
➔ Problem here is that it is not permanent – hard to tell when a person will reoffend or
not. To some people prevention isn’t necessarily needed- but punishment is still
needed.
d. Reform or rehabilitation
i. Use of punishment
ii. Treatment and training – re-educated
➔ Prison doesn’t serve this purpose
➔ Egs would be: community service; anger management; AA meetings
e. Deterrence of:
i. The general public
1. There in the background- we see other people getting
punished. That threat of punishment is a deterrent.
ii. The individual accused
1. Stop that individual from reoffending
2. Affective punishment= suspended sentence- specifically aimed
at deterring an individual. Often happens with 1st time
offenders
➔ Not physically stopped, but persuade people not to commit crimes. 1. Punishment is
not desirable; 2. people don’t want to suffer; 3. People will see what triggers the
pain/ punishment and avoid doing that thing- committing that crime. (people are
rational)
➔ Problem is that there is a very low detection and conviction rate
➔ The severity of the punishment does not mean the deterrent is stronger- the
likelihood of being punished is a stronger deterrent.
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