Criminal Law Protects Orderly Society
Crimes and criminal law are societal definitions: they are recreated, affirmed, and mobilised in the daily lives of ordinary citizens. Both, crimes and criminals do not just concern those workers or administrators in the justice system, such as officers of enforcement departments or courts, but the general public. The legitimacy of crimes and criminals must be obtained from the norms and values of the society. What are the crimes and who are the criminals are to be determined according to the norms and values of the society. For instance, leaving a toddler at public place unattended is not a crime in one place, but it may be a serious crime in another place.
Thus, dilemma always exist in the creation of crimes and criminal law; Reason to justify for criminalisation of an act has always been an issue to discuss; be it in jurisprudential and academic or even debate among political parties.
The general criminal law theories that has been developed long time ago is the “Harm Principles”. “Harmful” is among the most popular reasons to criminalise an act. If an act is harmful, it is justified to be criminalised. But, it is not as easy as the saying.
The Harm Principle has various dimensions. I am not going to explain the various dimensions of harm principle due to limited space. Only few are mentioned here.
One of the Harmful theory is “harm to others” principle. That is to say, an act shall be justified to be legislated as a crime if it is harmful to others. This is indeed a very important concept. It is celebrated in human right theory that all men are free and no one should be allowed to cause harm to him. Whoever causes harm to another, he must face the consequence, after due process, whether he is to be punished in the form or retaliation or in the form of punishment to his action.
However, within the “harm to others” principle, then exists the idea of acts that is harmful to the society, but the victim is not physically seen. Or, if it is seen in the society, it takes longer time to be identified as victim. That is to say, when an act does not directly or physically affect anyone else, then the act has no victim. Thus, it is developed from this theory that, without a victim, there is no crime.
In a more recent development of criminal law theory, the aim of criminal law, in particular, criminal punishment, is the protection of public against harm. For instance, should a serial rapist be incarcerated for life? Thus, if a person has been convicted for any criminal act, he shall be punished. But the question to be answered is what kind of punishment or how serious the punishment should be? The incarceration of offenders in serious crimes probably fit in the description of “harm prevention principle.”
Harmful conduct is another dimension in harmful principle. Can harmful conduct, be criminalised.
Can an act be made a crime because it is simply evil or immoral; but the conduct itself is not a harmful conduct? This question leads to more serious deliberation on some portion of discussion on law and morality. Whether, immoral act can be criminalised? Jurisprudential debate on morality and law continues without clear ending. Probably it will never reach to an end.
The jurisprudence of criminal law in Islam faces similar dilemma. What actions or inactions may be criminalised. Probably in Islamic theory, a simple explanation is that all sinful acts are bad. But not all “bad” action or inaction should be criminalised. Some Muslim jurists provide basic guidelines in criminalization. That is to say, in making an act or inaction a crime, the action must be harmful to the five important indispensable in Islam, namely; religion, life, intellect, off-springs and property.
Criminal law therefore aims to protect the five subject matters in order to achieve orderly society. Thus, in the creation and application of criminal law, is not simple. Certain ijtihad is required before crimes or punishments are enacted. Ijtihad in Islamic law is the process of making a legal decision by expert, through interpretation of the legal sources, the Qur’an and the Sunnah.
Ijtihad must be carried out according to locality, masses and time. The realistic and contemporary character of Islam in general and Islamic criminal law in specific must be adopted in the making of the law. In the creation of offences, or in carrying out the Ijtihad process, the values and the fullest understanding of Islamic way of life, that covers three important aspects, that are the faith in Islam, superb characters of human being and dealings with all others must be made present in the provisions of law. In other words, the law needs proper wordings and magnificent enforcement process.