Functions of Criminal Law

THE FUNCTION OF THE CRIMINAL LAW

The function of the criminal law is largely to set the parameters within which the criminal justice system operates. There are two aspects to this. Firstly, the criminal justice system is a tool of social control representing the agglomeration of powers, procedures and sanctions which surround the criminal law.

The police are empowered to investigate crime, search for evidence, arrest suspected offenders and question them. The courts are empowered to try persons charged with committing crimes and, if convicted, to sentence them. In setting the parameters within which this coercive State apparatus operates, the criminal law plays a central role; a person may only be arrested where he is suspected of committing a crime; the police may only search for evidence which points towards the commission of a crime; the courts may only try and sentence persons who are charged with, and then convicted of, committing crimes.

It is crucial, therefore to define clearly what acts, omissions or states of affairs amount to crimes as all the other powers, procedures and sanctions of the criminal justice system are dependent upon these definitions. The criminal law, accordingly, limits and controls the legitimate exercise by the State of its coercive power to investigate crime and prosecute, convict and punish criminals. Secondly, the criminal law operates as a guide to the citizen indicating the limits of legitimate activity -on his part and predicting the consequences of infraction of the criminal law.

If the power of the State is to be effectively limited and if the citizen is to be able confidently to make rational choices regarding his behaviour, the criminal law must be clear, relatively stable and accessible, that is, knowable in advance.

Throughout the course of this book judicial decisions on the content and ambit of the substantive criminal law will be subjected to criticism, sometimes trenchant criticism, as there is a tendency for judges to lose sight of the wider role which the criminal law serves in their understandable desire to see persons whom they regard as 'undersirable characters' locked behind bars.

The criminal law is a series of prohibitions backed up with the threat of punishment. An understanding of the function of the criminal law requires further inquiry into the reasons why breaches of the criminal law are met with punishment and why certain behaviour is subjected to prohibition.

Social control and social morality