CRL1012- Introduction to Law

Legal Sources

Laws of Malta and other legal publications – Available online:

http://www.justiceservices.gov.mt/LOM.aspx?pageid=27&mode=chrono

EU Law - Available online :

https://eur-lex.europa.eu/homepage.html

Council of Europe Conventions – Available online:

https://www.coe.int/en/web/conventions/full-list

United Nations Treaty Collection - Available online:

https://treaties.un.org

1. Definition of Criminology:

Criminology can be described as “the study of making laws, the breaking of laws and of
society’s reaction to the breaking of laws” signalling the three main branches that make up
the subject. It provides explanations for criminal behaviour, criminological theory, the
operation of the Criminal Justice System, the psychology of crime, the anthropology of
crime, crime and economics and more.

2. Schools of Thought: Classical School VS Positivist School

Classical School:

The classical scholars consider people as human calculators, endowed with free will, insisting
that before acting, an individual weighs the pros and cons of his/her action – the probability
of getting caught against that of escaping justice. If the balance tips towards the pros, that
person will choose to commit the crime.

The advocates of the Classical School believed that only two “springs” control humans: the
fear of pain and the search for pleasure. Therefore, to prevent people from committing crime,
one would only need to calibre the pain/pleasure balance in a way as to add the pain or the
possibility of incurring it. In other words, make laws harsher and improve law enforcement.

Some principles that are still echoed in modern criminal codes:

 everyone is equal in front of the law;
 punishment is necessary but it should be proportional to the harm done to society;
 punishment should be immediate and not be cruel;
 prisoners should be treated with dignity;
 the public should be made aware of the law – it should be accessible to all and written
in the language understood by all.

Positivist School:

This schools aim was to challenge the Classical School.

If people are aware of the law, if there is a strong possibility of capture, why do they still
choose to commit crime? New questions were being posed and answered scientifically.

Early positivists claimed that criminals are born – they are either:
 atavistic (belonging to a different, non- evolved species of humans) or
 maladapted organisms (drawing on Charles Darwin’s theories) that needed to be
removed from society (hence their belief in the death penalty) like a malignant cancer
from a human body.

According to the early positivists, people did not have free will - some were just born
criminal.

Positivist thought evolved and admitted the importance of social, economic and political
determinants that could lead people to commit crime. Others believed that criminal behaviour
has its roots in psychological features. Modern Criminology is built on this platform.

Criminology considered as a multidisciplinary subject attempts to answer any crime-related

question with the help of the knowledge brought in from the various fields, from laboratory,
traditional sciences (commonly referred to as criminalistics) and social sciences particularly:
biology, chemistry, physics, medicine, environmental studies, information technology,
psychology and sociology.

3. Law and Justice

Law

Many people consider themselves law-abiding citizens with the majority of individuals
believing that they know the law pretty well. Some people argue that a society cannot be
properly understood or explained without an understanding of its law and legal culture. Law
plays an important role in social, political and economic life. Some laws are widely accepted
whilst others generate constant controversy.

However, society is not governed only by legal rules but also by other types of rules, such as
the rules that belong to:
 A religion (e.g., the Ten Commandments)
 Etiquette (e.g., «Eat with a knife and fork»)
 Special organizations such as student associations (e.g., «Every member must carry
out voluntary work once a month»)
The Law serves as a mediator of relations between people and between the people and the
state and therefore it is necessary to understand the application of the law through the court
system and how laws are actually enacted.

What is Law?

There have been several attempts to produce "a universally acceptable definition of law". In
1972, Lord Lloyd of Hampstead indicated that no such definition could be produced. Some
say that the question "what is law?" has no simple answer. Glanville Williams said that the
meaning of the word "law" depends on the context in which that word is used. This brings us
to the definition of law that will be used throughout this course:

“Law is a set of rules created by state institutions which make laws through the
authority of the state. The laws have sanctions which are recognised by the state and
enforced by state-authorised bodies.”

This definition highlights some of the important factors in law-making:

 the authority of the state is needed
 only certain institutions can make law
 the institutions that make law have been given the authority to do so
 sanctions exist for breaking the law
 the sanctions are imposed by those given state authority to do so.

Law or Morality

Historically, the moral and religious values of a society influenced the development of law.
Early philosophical writers believed in a higher law known as ‘natural law’, deriving from
God. In principle, natural law principles should be reflected in man-made laws and if they are
not then those laws should not be regarded as laws at all.

 Major breaches of a moral code are also likely to be against the law; criminal law
provides the obvious example of where morality and law often merge.
 The influence of morality in a very general sense is also implicit in a wide range of
different laws.

For instance, in the commercial world, laws criminalising bribery and the imposition of legal
duties on company directors embody what would commonly be considered the ‘right’ or
moral way to conduct business.

However, law is influenced by a wide range of political, social, economic and cultural
factors, and the moral climate of society is only one of these factors. In practice, many laws
have a bureaucratic, administrative and technical function. They operate as an essential part
of a complex modern society and have little or no connection with morality.
 Moral values are not static, they evolve overtime and laws may change as a
consequence.
 It may be that law pre-empts the change of moral values; the decriminalisation of
homosexuality / adultery is an example of how law influenced a change in this way.
 The issue of whether law should be involved in enforcing a moral code in matters that
concern the personal lives of people, such as their sexuality, has long been a
controversial issue.

Behavior which is commonly regarded as immoral is often also illegal. However, it is not
always the case. For example, parking on a double yellow line is illegal however it cannot be
considered as immoral.

Law Morality
Sanctions are invariably imposed for the There is no official sanction for immoral
infringement of a legal obligation behaviour, although society often creates its own
form of censorship
Law is deliberately changed by Parliament Morality cannot be deliberately changed, rather
and/or the courts it evolves slowly
Legal principles need to incorporate a Morality is invariably much more flexible and
degree of certainty variable

Law and Justice

Interconnected with the ideas of law and morality is the notion of justice. Achieving justice is
often regarded as the main aim or function of the law – it is the ideal or the ultimate goal
towards which the law should strive.

 The Scales of Justice represent the balance of the individual against the needs of
society and a fair balance between interests of one individual and those of another.

The personification of justice balancing the scales dates back to the Egyptian goddess of
justice, Maat, who stood for truth and fairness. The Greek goddess of justice, Themis, was
traditionally represented carrying scales in which she measured the different aspects of the
argument.

 The Sword of Justice represents a symbol of power, protection, authority, vigilance

and might. The sword is double-edged, symbolising the power of justice, which may
be wielded either for or against any party.

It also serves as a reminder of the link between law and punishment. If the law is broken,
then punishment will follow.

 The blindfold, a symbol of blind justice, represents equality. Justice sees no difference
between the parties involved. This symbol of justice is most commonly found in
European images of justice.

The meaning of justice has been considered over the centuries by successive philosophers,
academics and lawyers, and there are many different theories.

- Substantive justice
 This is concerned with the content of the law.The legal principles created by
Parliament and the courts need to be regarded as ‘just’.
 The moral and cultural values of the society in which the law is created are especially
influential in determining whether the law is regarded as just.
e.g., whether the laws on abortion or drugs are regarded as just will largely depend on the
attitudes that are prevalent in that society.

- Formal justice
 This is concerned that legal principles are applied in a way which is fair; it invariably
involves treating people in a similar situation in the same way; like cases should be
treated alike;
 It is important that judges are unbiased when they hear cases, and that the same rules
of procedure are applied to everyone in the same way;
 Reg. frameworks such as health and safety laws, planning laws and financial services
laws operate and are applied in a way that is fair and consistent.

Rule of Law

The promotion of justice is reflected in the concept of ‘the rule of law’.

In the nineteenth century Professor A. V. Dicey (1835–1922) set out the three elements
essential for the rule of law. This concept has evolved and been developed over the last 150
years into something much more sophisticated and complex but at its core lies the role of law
in the creation of a fair and just society.
e.g. role of Free Press/Media and the protection of individual basic rights

Three essential elements:

 The state’s power must be controlled by the law; the law sets limits on what the state
can or cannot do.
 No person is above the law; every individual regardless of their position is subject to
it. The law applies to everyone in the same way regardless of their social, economic or
political status.
 No individual should be subjected to arbitrary arrest or punishment. People should
only be arrested in accordance with the law for breaches of the law.