The Nature and Development of Criminal Law

The criminal law is a body of rules listing the various criminal offences, identifying the ingredients there of (including common elements such as general defenses) and specifying the potential punishment.

For instance, the criminal law tells us that, amongst others, rape and theft are crimes; it tells us exactly what the elements of these offences are and what potential punishments they carry.

The list of crimes (in the sense of wrongdoing punished by the community) in early law was extremely short, and included as major offences witchcraft and incest.

For offences such as homicide, wounding, rape, theft etc., the only remedy in primitive law was self-help.

As society developed, self-help was replaced by a system of enforced payment of compensation. The harmed victim, or his kin, was entitled to compensation from the wrongdoer. Such offences were thus not perceived as public wrongs affecting society as a whole. Only the victim or his
kindred had sustained a loss and was entitled to have this loss made good.

The community at large did however have some interest in such forms of wrongdoing. Even in Anglo-Saxon times severe punishments were meted out against offenders who were unwilling or unable to compensate. By the end of the twelfth century it had been realized that such wrongdoing had implications beyond the simple harm sustained by the victim.
First the wider community and then the king began to assume responsibility for criminal justice. Those who had broken the ‘king’s peace’ were brought before the king’s judges who were itinerant justices. The charges were laid on behalf of the community by a ‘grand jury’. Punishments were imposed that did not involve compensation to the victim. In short, the criminal law began to assume one of its most distinctive features, namely, that it is concerned with public wrongs.

A crime is a public wrong in the sense that the public at large is affected by it. The community is threatened or offended by the crime. For example, the crime of rape does more than harm the victim. Society is threatened and made less secure by the rape: the rapist could strike again. Accordingly, society is not prepared to leave the matter to the victim to seek compensation. Rape is made a crime and society attempts to apprehend the rapist and secure his punishment.

Two related features dominated the early criminal law.

  1. Most offences were extremely broad, covering a wide range of wrongdoings. For instance, there was only one homicide offence, the present distinction between murder and manslaughter coming into existence only in the fifteenth century.
  2. Until the end of the twelfth century it appears that the criminal law was primarily interested in the amount of harm done. Man was punished not because he was blameworthy but because he was an instrument of harm. Such thinking led some primitive laws to punish all instruments of harm.

Thus animals could be executed and axes burned. They, and the man who used them, were tainted with evil. Such thinking is still with us today to a certain extent. For instance, if a carving knife were used in a murder we would all regard as distinctly odd (to put it mildly) the man who knowingly used that knife to carve his Sunday roast!