Analyzing Criminal Law: Social Norms, Legal Frameworks, and Evolution

This essay delves into the complex interplay between criminal law and social norms, examining how societal values and political factors shape legal frameworks and influence the process of criminalization. It explores various definitions of crime, highlighting the importance of balancing social aspects with legalistic approaches, and discusses how different conceptions of society, static and dynamic, impact the development of laws. The essay analyzes the significance of criminal intent, the role of rationality, and the influence of socio-political factors on the evolution of criminal law. Furthermore, it investigates the impact of historical events, technological advancements, and globalization on criminal justice, providing examples like the Burqa ban in France and the evolution of laws related to homosexuality and financial crimes. The essay concludes by emphasizing the interdisciplinary nature of criminalization and the importance of studying social interactions and reactions before implementing legal changes.

ASSIGNMENT

Table of Contents
INTRODUCTION...........................................................................................................................................2
MAIN BODY.................................................................................................................................................3
CONCLUISON...............................................................................................................................................7
REFERENCES................................................................................................................................................8
INTRODUCTION
Lord Denning has stated “when a judge sits to try the case he himself is on trial before his
fellow countrymen. It is on his behaviour that they will form their opinion of our system of
justice.”
The idea of legal power to judge someone, an act or an omission is immensely powerful.
A judge is someone who has to uphold the integrity of legal norms which in reality are a
construction or reconstruction of the social norms accepted by the society at large. There is

interplay of different factors that lead to these social norms gaining primacy and subsequent
according of legality. Criminal law is particularly a peculiar development resulting from these
factors.
MAIN BODY
When we look at the society that we live in today we can clearly witness to how the same
it is quite different or modernised. Several ways of life change means of interaction have evolved
and techniques of carrying out commercial transactions alongside technology have developed
manifolds. Society taken as a dynamic concept leads to acceptance and non-acceptance of acts as
legal.
This variant in approach can be traced by looking at the history legal norms follows in an
organised society are created by humans largely based on religious historical cultural and at
times individual value systems. The possibility of different ideas different practices different
origins and the suitability of the geographical zones make it difficult to form a complete system
of law that is static. Criminal laws, thus, are not largely static. We shall develop on this idea of
dynamic and static development of laws in the second part. In this part we shall look into how
crime has been defined so as to understand the interplay of legal and social norms which in
effect, affect the criminalisation process.
Blackstone defined crime as breaches of norms that injure the community at large, but a
certain kind of deviance like ingratitude must not be a part of a legal code. It seems to be in the
nature of a social norm. Some other definitions deal only with the legalistic character alone and
highlight someone as criminals only if they have been adjudicated to be so. This definition
completely lacks social nature. We see that at times definitions of crime fail to balance the
domain of social aspects while these very aspects are a basis of so-called deviance. A definition
by Schwendinger & Schwendinger focuses on basic rights that are further highlighted by racial
economic and sexual ones. This definition is broad enough to also encapsulate the social
structure, individual position and social relationships. It thus, accounts for the ever changing and
evolving concept of social interaction. It must also be noted that crimes are not just changing
because of social aspects but also are a product of socio-political aspects. This definition also
allows for a State to be a perpetrator, as was in the case of Nazi Germany. Socio – political

domain heavily affects the domain of human rights and criminal laws are essentially used time
and again from either of the lenses, suggesting a greater human good but only a few actually
maintain and respect the notion of freedom of individual rationality.
Heavy reliance and understanding of criminal intent is a part of study of criminal law, but
the element of illegality is constitutive of a crime in the first place. The process of
criminalization defines what behaviour should be treated as legal and thus, not as a crime. It is a
process that accounts illegality to certain acts making them criminal in nature. Edwin Sutherland
talks about making of laws as part of criminology which is essentially a reference to (il
–)legalising certain acts criminal. Criminalisation is a process that is essentially political in
nature and it is right here when we see the interaction of social domain with the political realm.
Formation of Criminal policy of state or organised society is guided by principles legally
accepted across the society. This power is immense as it labels someone as criminal, creating a
distinction or legal fiction.
An example of this sort can be taken from 1348 England when Black Death hit the
country it led to decimation of Labour, works reduced, wages rose and to prevent migration
vagrancy laws were brought up. This was largely to make serf population available to the feudal
lords at low wage. This instance highlights the political domain of criminalisation.
When we perceive a crime we tend to evaluate the ingredients of criminal liability these
ingredients can be broadly divided into 2: the act and the mala fide intent. The mens rea aspect
characterizes different levels of understanding of a certain act in terms of: intent, knowledge,
recklessness and negligence. All these aspects have an underlying agreement on the central
theme of rationality which is also a central tenet of organised society. Very popular and peculiar
example of rationality can be drawn from harm principle.
In a study of society there are two basic conceptions: one static and the other dynamic.
Static conception of society would believe social norm to have arisen out of consensus while a
dynamic conception would emphasise on the near impossibility general consensus and
continuous change of society. Both the conceptions are rooted in individual rationality, but the
same plays out differently in each case. A certain preference to a particular behaviour that
increases or improves the given utility leads to general consensus because such an action would

always be the rational choice. This is followed by enforcement to avoid reduction or possibility
of reduction of utility. A dynamic conception is not based on consensus but on diversity of
opinions based on individual rationality. People tend to have competing interest and a social
interaction creates new forms of behaviour. A dynamic conception is based on critical
approaches in fields of law and sociology borrowing from the ideas of Marx. It identifies
stratification in society which curbs individual rationality which might differ from the general
consensus termed social norm politically entrenched as a legal norm.
Work of Emile Durkheim is quite relevant here. He discusses the idea of a shift from
mechanical solidarity to organic solidarity. Individual rationality does provide groundwork for
the shift allowing people to pursue individual choices or values unless autonomy of some other is
violated. This is quite similar to Mills notion of Harm principle. His theory also highlights that
mechanical solidarity would lead to repressive laws underlining a majority rule curbing
individual rationality; whereas an organic solidarity would lead to restitutive law fostering
common development. We can clearly see from our reference to Durkheim that a society which
does not account well for all strata off population would possibly lead to formation of repressive
laws using the means of social structures. Criminal laws that are repressive of such needs,
choices and rationality are a feature of mechanical solidarity. While in an organised society
based on organic solidarity we can see, an undercurrent of individual rationality furthering itself
under the foster domain of general consensus based on utility enhancing principles. This creates
a scope of simultaneous development of social currents within the society due to piecemeal
acceptance of certain individual actions as legal under the broader norm of effective individual
freedom.
In effect it can be said that criminal laws are largely static in essence of golden rule of
humanity: protecting basic rights while not curbing on individual Rationality. Changes or
reforms in a criminal law scheme can thus, be of two kinds. Criminalisation can either be based
on socio-political power needs or socio-political human needs. In both the circumstances the
essential underlying idea is fostering efficient individual rationality which is subject to change
due to the changes in needs brought by static-dynamic dichotomy of structural foundations
whose one dimension is culture: encompassing political climate and ideology; in distinction to
the other dimension of structure pertaining to demographics (economical religious racial gender

based). Social interaction creates new forms of behaviour which lead to trigger events bringing
out calls for reform.
Recent researches have started to work on the criminalization model based on
globalisation and modernization as the world takes a global leap. Criminalisation by according
the tag of illegality to a certain act can be strictly based in reasons pertaining to Social, Political,
economic or Human rights domain or interplay of some or all which is mostly the case as they
are largely connected.
A keen example is that of Burqa ban by France in light of fostering a secular domain in
the country to prevent any barriers to communication. This to them was based on a universal
human rights conception but the sheer rigidity has offset the gains and has garnered criticism;
because the model of such laws pertained to restricting individual choice to voluntarily choose as
a part of religious practice. Recent developments in the past few months suggest as to how these
are a part of growing Islamophobia or could be suspected to be so.
With the advent of industrialisation corruption and the offence of fraud increased and so
did hoarding. Several legal developments pertaining to financial crimes happened such as Fraud,
which was previously a tortuous offence developed and was redefined to be an offence against
the public at large. Suitable amendments were brought to criminalise it. It still grew as an
economic offence as white collar crimes became common and thereby the public perception
towards corporations changed leading to protection and criminalisation of certain acts to counter
White – collar offences.
Similar challenges have been posed by the technological advancements. A glimpse of the
development can be referenced from how in R. v Wood ([1982] 767 Cr. App. Rep. 23) a decision
pertaining to computer based offence a new legislation criminalising computer based
transactions was to be created within a span of just 8 years.
Interestingly so, the laws that have mostly been referred to in matters of criminalisation
pertain to prostitution and Homosexuality. The laws were originally based on the Biblical
understanding of Sodomy. Buggery Act of 1533 penalised the same with death. Male
homosexual acts were primarily targeted by these legislations though death penalty was taken
away by Offences Against Person Act of 1861. It was only after Wildeblood scandal and

prominent names involved that the criminalisation was removed in 1967 after Wolfenden Report
in 1957 and Jt. Patrick Devlin’s Enforcement of Morals in 1959 who opposed decriminalisation
based on the web of common morality nurtured by common thought. He found it imperative to
protect the existing English society or the web of morality of such English Society; as any
change in the rules or deviance would bring a shift and the social domain would modify losing
its character.
The changes in the sodomy laws were only brought when a direct effect on the upper
echelons of the social strata was felt. Only a further opinion poll that highlighted common
consensus of people on such decriminalisation brought the change.
CONCLUISON
In conclusion it can be said that the criminal wrongdoing gets modified by the very act of
new rules of criminalisation or decriminalisation. The tensions such as widespread fraudulent
behaviour; or technological challenges causing loss of capital are a very relevant set. A shift or
change in value system is another aspect clearly highlighted by the Homosexuality laws and the
growing intolerance towards certain religious practices or religion altogether. Excessive
criminalisation or paternalistic behaviour curbing individual rationality, including the issues
reported in last decade, emphasizes the significance of criminalisation as an inter-disciplinary
issue. Social interaction, reaction and labelling are to be studied before undertaking an action on
tensions or social currents modifying social values.

REFERENCES
Books and Journals
Allen, M., Edwards, Ian., 2019.Criminal Law. Oxford University Press, Incorporated.
Berghoff, H. and Spiekermann, U., 2018. Shady business: On the history of white-collar crime.
Clarkson, C.M., Keating, H.M. and Cunningham, S.R., 2010. Criminal law: text and materials.
London: Sweet & Maxwell.
Herring, J., 2014. Criminal law: text, cases, and materials. Oxford University Press, USA.
Hiah, J. and Riesthuis, T., 2016. Studying Law in Society: Static and Dynamic Conceptions of Social
Norms. Erasmus L. Rev., 9, p.1.
Jenness, V., 2004. Explaining criminalization: From demography and status politics to
globalization and modernization. Annual review of sociology, pp.147-171.
Muncie, J., 2008. The theory and politics of criminalisation: John Muncie argues that a critical
understanding of criminalisation remains crucial. Criminal Justice Matters, 74(1), pp.13-14.
Persak, N., 2007. Criminalising harmful conduct: The harm principle, its limits and continental
counterparts. Springer Science & Business Media.
Simester, A.P. and Von Hirsch, A., 2011. Crimes, harms, and wrongs: On the principles of
criminalisation. Bloomsbury Publishing.