Theories of Criminal Law

Abstract
Philosophical theories of criminal law may be analytical or normative. Once we have identified
the salient features that distinguish criminal law from other kinds of law, we ask whether and
why we should maintain such an institution. Instrumentalist answers to this question portray
criminal law as an efficient technique that helps us achieve worthwhile ends; non-instrumentalist
answers portray it as an intrinsically appropriate response to certain kinds of wrongful conduct.
By considering the question of how the criminal law should address citizens, we can discern the
truth in the non-instrumentalist perspective. The next question concerns the proper scope of the
criminal law: what kinds of conduct should be criminalized? Several candidate principles of
criminalization are critically discussed, including the Harm Principle, and the claim that the
criminal law should be concerned with public, rather than merely private, wrongs. Further
questions are raised, however, by the increasingly important phenomenon of international
criminal law.

The criminal law deals with crimes: but what is a crimeand how does the criminal law deal
with it?
Crimes, we might initially say, are kinds of conduct that are defined by the law as wrong.
However, even this crude initial approximation must be qualified. First, we can say that
crime always involves conduct only if we stretch the meaning of that term so far as to
empty it of substantial content: we can (whether justly or not) be held criminally liable not
merely for what we do, or fail to do, but for what we are, perhaps even for what we think for
what we intend, for instance. But for the moment we can talk of conduct, since it captures
the most familiar kinds of crime. Second, we must not, or must not yet, read wrong here as
morally wrong: it will be a further question whether the criminal law either must of its
nature, or should as a matter of normative theory, portray the conduct it criminalizes
as morally wrong; all we should say so far is that it portrays it as being in some way wrong
or defective, something that those bound by the law should not do . That is, for instance, the
defining difference between a law that defines a certain kind of conduct as a crime which is
punishable by a fine, and one that subjects that conduct to a tax: both laws might be intended

to reduce the incidence of the conduct, but the former, unlike the latter, does so by defining
and punishing it as wrong.
Crimes differ from extra-legal wrongs in that they are defined as wrongs by the law: they are
not, or not just, wrongs in terms of some extra-legal social standard of morality, prudence, or
etiquette, but wrongs that are defined and recognized as such by the law. (This leaves open
the question of whether the criminal law can create wrongs, or whether it rather gives formal
recognition to wrongs whose wrongfulness is initially determined by extra-legal standards.)
But not all legally defined wrongs are criminal wrongs.

Submitted by
Satyam Kumar Pandey
4th Semester, R.No. 106

Introduction
Theories of criminal law could just be general theories of law applied to the particular case of
criminal law. Philosophical theories of criminal law can be analytical, or normative.
Analytical theorists seek to explain the concept of criminal law, and related concepts such as that
of crime (metaphysically more ambitious theorists might seek an account not merely of the
concept of criminal law, but of its real, metaphysical nature. They need not look for a strict,
historical definitionan account of the necessary and sufficient conditions given, and only
given, which a human practice counts as a system of criminal law; we have no reason to think
that any such definition will be available. But they can hope to identify and explain the central or
salient features of systems of criminal lawfeatures at least some of which will be exhibited by
anything we can count as a system of criminal law; and to develop an account of a paradigm of
criminal law, on the basis of which we can recognize as systems of criminal law other practices
that resemble that paradigm sufficiently closely, even though they do not quite fit it.
Normative theorists seek an account not just of what criminal law is, but of what it ought to be
(and whether it ought to be at all). Should we maintain a system of criminal law? If so, what
goals should it serve, what values should inform it, what should its scope and structure be? Any
such normative theory must presuppose some analytical account of that whose goals, values,
scope and structure are being discussed. Whether analytical and normative theories are related
more closely than this will depend on what kind of analytical theory we develop: a legal
positivist will insist that, here as elsewhere, the question of what law ought to be is quite separate
from, and left open by answers to, the question of what law is. A Natural law theorist will argue
that an adequate analysis of the concept or the metaphysical nature of criminal law will reveal
the moral purposes or values that a practice must serve if it is to count as a system of criminal
law at all.
Scope of the Study
The research will be containing the different types of theories in criminal law but it will focus
mainly on analytical and normative theories of criminal law and also related theories which

contradict as well as support these theories, and ultimately will conclude that which theory serve
more in understanding the concept and purposes of criminal law.
Research Methodology
The researcher will as obvious be restricting on the doctrinal methods of study and will be
dependent on books, article, internet, journals etc. for the purposes of this research.