Theories of Criminal Law

Cite this article as: Jason Mance Gordon, "Theories of Criminal Law," in The Business Professor, updated January 5, 2015, last accessed April 1, 2020, https://thebusinessprofessor.com/knowledge-base/what-is-criminal-law/.
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Theories of Criminal Law
This video provides an explanation of the theories behind criminal law.

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Back to: CRIMINAL LAW

What is “criminal law” in theory and practice?

Criminal law is public law passed by the federal, state, or local government. It restricts or requires affirmative conduct of its citizens under the threat of prosecution. These prohibitions may be in the form of a statute, common law rule, regulatory rule or decision, or local ordinance. Criminal laws prohibit conduct that is either considered, “malum in se” or “malum prohibitum”.

  • Malum in se – means that conduct is inherently wrong without regard to a statute proscribing the conduct.
    • Example: Most people consider murder and theft to be innately wrong or evil without regard to a government’s prohibition of the conduct.
  • Malum prohibitum – means that conduct is not necessarily wrong or evil, but it is made illegal based upon a law.
    • Example: A public company’s failure to adequately disclose corporate information to the public is made illegal by statute. Without such a statute, it may not be considered inherently wrong.

The authority for each type of law may differ, but generally criminal laws are enforced by the government and exist to protect the health, safety, and welfare of citizens. This includes protecting the property and rights of those citizens. Failing to comply with criminal laws can result in fines or imprisonment.

Discussion: Do you generally believe that criminal laws are effective at curbing prohibited conduct? Do they effectively protect the health, safety, and welfare of citizens? Does a criminal penalty ever violate the purpose of protecting citizens? With the prison population at record levels in the US, is there a need to reform the criminal punishment system? If so, what are some alternatives that may achieve a similar purpose to the penalty of imprisonment?

Discussion Input

  • Some laws are effective and others are not. Drug laws are very strict, yet the drug trade is very strong. Some laws protect citizens and others do not. Some might argue that outlawing marijuana, despite its medicinal properties, does not protect people. Some would say that a leaker of classified information being put in prison is an example of a criminal law punishing someone for protecting the public. The criminal justice system tends to show signs of racial and socio-economic discrimination. It is noticeably  true of the prison incarceration demographics. This is largely based upon the types of crimes for which the population is incarcerated (mainly drug offenses). Many would argue that jail does not reform and retrain convicts to be or become contributing members of society. Perhaps increased education and training rather than idle confinement. Of course, others would argue for stiffer penalties to include the death penalty for a wider variety of criminal activity.

Practice Question: Explain the primary differences between criminal law and civil law?

Proposed Answer

  • Criminal law is a form of public law. The Federal or State Governments seek to demonstrate that an individual has broken a law passed to protect society from harm for which there is the potential for punitive measures. These might include fine, imprisonment, or injunction (orders to stop) from doing further things. A Civil Action may be public or private law. Generally, a civil action iis when one party brings a legal action against another seeking to be compensated for the harm suffered due to the conduct of a defendant. There are cases, however, when one party will bring a civil action against another when no harm has occurred. They simply seek an order from the court remedying a situation that the party believes will ultimately result in harm if left un impeded. To sum it up, criminal law punishes for conduct deemed to harm society. Civil law is suing someone when that personal has wronged you legally.

Academic Research

Alexander, Lawrence, The Philosophy of Criminal Law (May 15, 2001). THE OXFORD HANDBOOK OF JURISPRUDENCE AND LEGAL THEORY, Forthcoming. Available at SSRN: https://ssrn.com/abstract=285954 or http://dx.doi.org/10.2139/ssrn.285954

Thorburn, Malcolm Bruce, Criminal Law as Public Law (October 21, 2010). THE PHILOSOPHICAL FOUNDATIONS OF CRIMINAL LAW, Duff and Green, eds., Oxford University Press, 2011. Available at SSRN: https://ssrn.com/abstract=1695544

Gruber, Aya, A Distributive Theory of Criminal Law (October 5, 2010). William and Mary Law Review, Vol. 52, No. 1, 2010. Available at SSRN: https://ssrn.com/abstract=1688066

Brown, Darryl K., Third-Party Interests in Criminal Law. Texas Law Review, 2002, Forthcoming. Available at SSRN: https://ssrn.com/abstract=295639 or http://dx.doi.org/10.2139/ssrn.295639

Stuntz, William J., The Pathological Politics of Criminal Law. Michigan Law Review, Vol. 100, December 2001, Forthcoming. Available at SSRN: https://ssrn.com/abstract=286392 or http://dx.doi.org/10.2139/ssrn.286392

Lee, Youngjae, Can Criminal Law Do without Moralism? (February 15, 2013). 12 Journal of Moral Philosophy 103 (2015). Available at SSRN: https://ssrn.com/abstract=2218763

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