Crime and Punishment: A Historical Perspective
Section 1: Crime and Punishment
Crime
The public authority that governs society determines the foundations for coexistence and prohibits acts that endanger it. The number and types of prohibited acts depend on the specific historical moment. An act can be inconsequential at one time and acquire great significance in another. The importance of criminal law is inversely proportional to the development of society. Criminal laws prevail over civil laws when society is weak, such as among primitive peoples or in the High Middle Ages. The opposite is true in times when society is stronger.
An offense is the violation of the fundamental bases of coexistence. The Latin term delictum means a wrongful act or offense. Initially, crime was linked to religion and considered an offense against the gods, punished to appease their wrath. Among the Visigoths and in medieval kingdoms, guilt was determined based on physical phenomena, such as the failure of a wound to heal, which was considered a divine sign of guilt. This demonstrates the link between crime and religion.
Crimes are categorized according to their importance: felonies and misdemeanors, based on the sentence. A felony is an action punishable by a severe sentence, while a misdemeanor is punishable by a slight one.
Crimes are also distinguished by the interests involved:
- Public vs. Private Crimes (Roman Law): Public crimes affect the entire community, while private crimes affect only individuals.
- Court Cases vs. Member Crimes (13th-Century Castilian Law): Court cases are reserved for the king due to their gravity (e.g., death or betrayal). Member crimes are less serious and judged by local authorities.
- Ex Parte Prosecution vs. State Prosecution (Modern Law): Certain crimes, like libel and slander, require a request to be prosecuted. Others can be prosecuted by the state even if the victim objects.
Historically, there’s a double conception of crime:
- Objective Conception: An offense is punishable by the result; a crime exists when there is a result.
- Subjective Conception: Requires intent to cause evil or harm in addition to the result. The objective conception is characteristic of primitive societies where intent is difficult to judge. Roman and Visigothic law required intent (dolus and animus, respectively). Current law sees a resurgence of the objective conception for acts that always pose a risk to others (e.g., reckless driving). The subjective conception triumphed in the legal code, requiring proof of intent.
Finally, there is a legal conception of crime: a crime is only what is defined by law (principle of legality).
Penalty
A penalty is the punishment imposed by the government for a crime. While there is agreement on the need for punishment, its purpose is debated: repressive, preventive, or a combination. Repressive penalties inflict harm as compensation for the crime. Preventive penalties aim to deter future crimes through fear. Historically, penalties were sacrificial, meant to please the gods (e.g., the Roman Cule penalty). The preventive approach takes two forms: intimidation (e.g., Hadrian’s harsh penalties for cattle theft in Hispania) and correction (punishment as a means of reform).
Penalties can be homogeneous (same nature as the crime) or heterogeneous (different nature). Primitive societies favored homogeneity and the law of retaliation. Later, heterogeneous penalties emerged, with a trend toward proportionality (more serious crimes receive harsher punishments). When the penalty isn’t clear, courts decide.
Heading 3: Defenses, Mitigating and Aggravating Circumstances
Defenses
Defenses are circumstances that absolve a subject of responsibility:
- Justification: Acts are not considered crimes because they are not unlawful or wrongful. Examples include:
- Self-Defense (Vim vi repellere licet): Repelling force with force. Applicable to attacks on persons, with debate about its extension to honor or property. Legitimate defense of person is generally accepted. Defense of property has a tradition in Spain (death to a thief at night). Defense of honor is also recognized (e.g., adultery in Castile).
- Due Obedience: Visigoths didn’t punish servants acting on their master’s orders. Castilian law had similar provisions.
- Necessity: Acts to prevent greater harm (e.g., eating one’s child during a siege).
- Ignorance: Ignorance of fact or law. Supported in Rome but not by the Visigoths.
- Insanity: Acts are considered crimes, but not attributable to the individual due to deficiencies in their will. Applies to the mentally ill, unless the offense is committed during a lucid interval. Modern law extends immunity to temporary mental disorders. Age is also a factor (irresponsibility under 7 in Rome, 10 in the Middle Ages, and 16 in modern law). Natural law considers sleepwalkers irresponsible. State of passion was sometimes considered.
- Innocence: Acts are considered crimes, but not desired by the author. Examples include:
- Accident: Crime occurs without the author’s will.
- Duress: Physical or psychological violence. Fear must be serious (e.g., threat of torture, mutilation, or death).
Mitigating Circumstances
These do not absolve responsibility but lessen it. Examples include:
- Social Status of the Offender: Different penalties for different social classes (e.g., Visigoths, medieval Castile).
- Social Condition of the Victim: Different penalties based on the victim’s status (e.g., Visigoths, Middle Ages).
- Right of Asylum: Offering safe haven to criminals (e.g., Roman emperors, the Church).
- Forgiveness of the Offended Party: Led to reconciliation in private vengeance systems. Later acted as a mitigating factor.
Aggravating Circumstances
These increase liability. Examples include:
- Status of the Victim: Disregard for the victim’s status.
- Persistence in Crime: Repetition (different offenses) and recidivism (same offense).
- Treachery: Crime committed against someone the offender should respect or love. Modern law defines it as a betrayal when the victim is defenseless.
- Place or Time of Offense: Crimes committed in markets, on roads, at fairs, or during certain times (e.g., Christmas) were punished more harshly in the Middle Ages.