9. Crimes. The state and private vengeance

All systems of law try to keep wrongdoing, or disruptive behaviour, within limits. Otherwise people cannot feel secure. Complete security is not possible or desirable, but if people feel too insecure they 'take the law into their own hands'. They arrange to beat, lynch, shun or expel those whose behaviour they find obnoxious. They feel the need for law and, if the state does not provide it, make up their own informal and often vicious version of it.

For example, in a society where there is no central authority, or the central authority is weak, killings lead to feuds between families and clans. But the families and clans are not impartial. They are judges in their own cause. Retaliation by one side is seldom thought just by the other. The feud goes on and may last for generations.

So when the state is strong enough it has good reason to intervene and try to enforce decent standards of conduct. It has a better chance than victims and their families of being seen as fair and of reducing private vengeance to a minimum. The state (and the international community) try to deal with disruptive behaviour in a way which aims at being both consistent and impartial. They decide what behaviour is so disruptive that they must intervene. They make this behaviour a legal wrong.

But these legal wrongs do not cover everything that is regarded as wrong in private life. Telling lies is usually wrong, but only special sorts of lies, such as perjury in a court of law, or lies that have specially bad consequences, like defrauding customers, are legal wrongs.

On the other hand legal wrongs include some behaviour that is not thought wrong, or not seriously wrong, in private life. Exceeding the speed limit on the open road, when there is no danger ahead, is a case in point. To exceed the speed limit is made a legal wrong because it is often, though not always, dangerous to drive at more than a certain speed. Given that, it is in practice simpler and cheaper to impose a blanket ban than for the driver and the court to work out in each case what the safe speed was in the circumstances. The driver who exceeds the speed limit when it is safe to do so has his freedom limited in the general interest. But is this fair?

10. Crimes and torts

In secular systems of law legislators, government ministers and judges decide what amounts to legal wrongdoing. The wrongs they define are of two sorts, crimes and torts. Crimes like murder and burglary are treated as wrongs against the state even though the victim is a private person; and those who commit them, if convicted, are punished by the state. Torts (also called delicts), like running someone over by negligent driving, are treated as wrongs against individuals. Those harmed by them can claim money from the wrongdoer as compensa­tion; but unless they take the initiative the state does not help them to get compensation. If, however, they do take the initiative, the state provides machinery (courts, judges and bailiffs) so that the wrongdoer will be forced to pay up.

Although the state recognizes these two types of wrong, crimes and torts, the same conduct can be made a crime or a tort or both. An example of conduct that is both a crime and a tort is obtaining money by fraud or, if it injures someone else, dangerous driving. When conduct is both a crime and a tort the two wrongs are treated as separate. So the wrongdoer may both be punished and have to pay compensation to the person harmed by his conduct.

Why does the state use two different methods of keeping wrong­doing within limits? The reason is that sometimes (e.g. when injury is caused in a motor accident) the victim has a strong incentive to get the wrongdoer to pay for the harm. The law of torts then gives the victim the right to take the initiative in claiming compensation. But at other times individuals have little interest in seeing the law enforced, or the chances of getting compensation are small. Most thieves, even if caught, are not worth suing; yet theft makes people insecure. The state therefore takes the initiative on behalf of the community. It makes theft a crime; and through the police, prosecutors, judges and prison officials it pursues and punishes the thief.

Crimes and torts look both to the future and to the past. They are meant to deter people from doing things in future that are seen as undesirable. They also seek to provide a remedy (punishment or compensation) if the threat hasn't worked. Two issues about crimes are discussed in this chapter. What type of conduct does and should the state make criminal? And under what conditions is it fair to hold someone guilty of a crime in a particular case?