A thematic review of criminal theory: Exploring the link between crime and morality

Synopsis:

Criminal law has a distinguishing role to play in the social world, a function that provides it a distinct center from different territories of law, since criminal law is the essential legal organization by which a community reconstructs the ethical premise of its social order, its moral life, in the wake of an assault on that moral life. However, it's not obvious why the concept of embodied ethical life is in a way associated with the thought about crime and punishment. This article's purpose is to uncover that link.

Introduction:

Law is basically a collection of rules and principles created and enforced by the state whereas morals are a collection of beliefs, values and principles and behavior standards which are enforced and created by society. Legal and moral rules can be differentiated, with the previous being created by the legislative institution of parliament; whereas the latter have evolved with and through society and are the standards which society generally accepts and promotes. Some laws mirror the bulk of society’s moral view, for instance, that murder is wrong but the introduction of same sex marriages is seen by some people as morally wrong and society is split.

The relation between law and morality:

Law and morality both overlap sometimes, both of those can not be exclusive but sometimes something is against the law but in keeping with morality or something against morals will be per law.

For example, if a hungry needy person stole a bit of bread, if we see this in keeping with the law then stealing something is against the law but if we see this example in keeping with morals then, it's right because the person was trying to fulfil his fundamental right to keep his soul and body together.

In another example a nation refuses to offer permission to refuges to require shelter in their country to safeguard its citizens right and makes a law for the identical purpose, it's against the morality because we must always help the needy one but this can be lawful.

The law is additionally an efficient tool to enforce moral values and principal, for instance, every citizen should pay the tax for development of the sate but there'll be less number of taxpayers if there'll be no law regarding this. In another example once we are driving on road we must always obey traffic rules to shield others who are also travelling with us, however in the event that there'll be no law in regards to this no one will adhere to these standards simply because of ethics.

The relation between law and morality can be understood by two theories of law positivism theory and natural law theory.

Natural law theory: in step with this theory both law and morality are connected. Consistent with natural law theorist, human law is predicated on the principle of morality, not on any human-made principles.

Status of law under natural theory doesn't rely upon only acts, but also religion, custom, ethics. this theory talks about what should be. Natural law is intrinsic and not required any authority to impose it.

Positive law theory: According to this theory law is command of sovereign authority. A command of a human being for the masses where the previous one is more powerful and stronger than other. The sovereign enjoys the power status and his authority as the lawmaker is unquestionable. In step with the matter, it'll decide what's right and what's wrong and if one doesn't follow the law there'll be a punishment. Jeremy Bentham who is taken into account to be the first positivist believes that law should be supported on human experiences. The positive law might set the quality for the actions that are required and for those which are prohibited.

Historic case where the conflict between law and morality can be traced.

R v Dudley and Stephens

[Law and ethical quality – the law knows no guard of necessity]

Three mariners and a cabin boy were wrecked and were hapless in an open boat 1600 miles from land. After they had somehow survived eight days without food, and six without water, DD concluded that their solitary possibility of survival was to kill the kid (cabin boy) and eat him, and this they did. After four days they were picked by a passing boat, and on coming back to England were sentenced for homicide.

Held: Necessity can never be a defence to kill. Their sentence of death was later driven to a half year's detainment.

Oppenheimer v Cattermole

[law and morality- an out of line law ought to be given inclination above morality]

Mr.oppenheimer was a German resident and was a educator there. He was kept for a brief timeframe at the concentration camp at Dachau and after that he went to Britain and acquired British citizenship. German authorities resolved to make remuneration to the representatives of Jewish religious communities gave Mr. Oppenheimer annuity and another pension was likewise granted to him when he turned 65.

Later an inquiry was raised that whether he is liable to pay tax to the British government on his annuities or not. In the event that he is just a British resident, at that point he needs to pay, however on the off chance that he is additionally a resident of Germany he can be excluded from this risk. The case initially choose by UK Special Commissioners for annual assessment held that as indicated by German law 1913, " a German lost their German nationality in the event that they procured a nationality without authorization." Thus, he lost his German citizenship and subsequently was obligated to pay taxes.

Law and morality and current scenario:

1.Section 377 of Indian penal code,1860 and morality

Section 377 provided the punishment for "carnal intercourse against the order of nature". This section criminalised all the sexual act which weren't in step with the character and prescribed punishment for the identical. These acts include all the sexual acts which are non vaginal or not productive, due to this section the member of LGBT(lesbian, gay, bisexual, transgender,) faced social discrimination.

However, on 6 September 2018, the Supreme Court of But, on 6 September 2018, the Supreme Court of India decided that the applying of Section 377 to consensual gay sex between grown-ups was unlawful, "unreasonable, indefensible and obviously arbitrary". The Constitution guarantees all citizens, independence of sexual orientation or identity as their fundamental right. This judgement proved that the Court is concerned with safeguarding ‘constitutional morality’, not ‘popular morality’.

2. Female genital mutilation

The practice of genital mutilation is practised in India by Dwoodi Bohra community, A Muhammedan community originated from Yemen, settled within India during the 16th century. The primary explanation for this practice is to follow shariat. This is often against the law. This practice is extremely dangerous since it is usually practised by an untrained person who do not have any medical expertise, and because of these factors, the victim of these practices need to suffer physical and mental pain.

Touching of female genital parts aside from medical purpose is a crime under IPC and POCSO act. Something that's criminal can not be practiced within the name of ethics or morality. It's against the dignity and privacy of girls. Still, this practice is prevelant in India.

3. Nikah halala and morality

Halala is a term that is driven from word "halal" which implies something passable and as per law. Nikah halala is a part of the personal law of Muslim community. According to this, if a groom had divorced from his significant other, and from that point forward, on the off chance that he needs to wed her once more. At that point for being qualified to re-wed her past spouse, the lady initially ought to wed some other man and afterward consummate her marriage and then only after taking divorce from that man, she can wed her past husband. These sort of practices consistently favor male individuals from a community, and ought to be tested for checking legitimacy, this is against the general principles of morality.

4. Refuges and morality:

Helping a needy person is an ethical obligation or an act as per moral standards. Today a few nations in the word have more assets and some do not have any. So the nations should help each other in this kind of circumstance. However, what is happening currently is an alternate picture, nations are passing laws that keep refugees from entering their nation. The reasons given for such acts are danger to the country's security, depleting of assets and so on. In spite of the fact that these laws are lawfully right however such acts are denounced for being against the Ethical standards.

Conclusion:

The Constitution of India protects all facets of individual diversity and morality, and thus any conduct that's a mirrored image of diversity, can not be labelled as harm.

Whatever is the manner in which the direct of individual is administered either by moral standards or by man-made law.They must be progressive in nature and should have that power to differentiate between wrong and right. Fundamental necessities of people mustn't be laid low with any form of law. Law is an instrument to urge moral standards adequately.The moral is an intrinsic phenomenon but the law is external if someone isn't following morality in his conduct there'll be no effect but if one disobeys the law there's punishment for the identical.