Sunday, April 26, 2009


A simple word! Yet not easily implemented? It is essential for the judiciary to be independent from legislative and executive powers. The courts should never be subjected to any influence from government. The courts must dispense weather civil ,criminal or administrative accordance with rules of law. 

If the judiciary fails in its quest to administrate, justice effectively and impartially than civil anarchy will eventually  result in the justice systems. People will  have no  confidence in the rule of law.
This will bring about kangaroo court ,giving rise to  vigilantes seeking retributive justice.

The are many theories on the purpose of punishment in criminal justice systems. The theories can be place in three broad categories.

Namely: 1) The absolute theory
  2) The relative theory
  3) The unitary theory

1)The the absolute theory:
a: Retributive theory

2)The relative theory
a: Prevention
b: Deterrence b1)individual deterrence
  b2)general deterrence
c: Reformative theory

3)Unitary theory: it will be foolish if the courts choose one of the above theories as being corrected one. All the above theories has a certain degree of effect, but if applied unilaterally show some of their deficiencies. Therefore the courts should not reject any one of the theories or accept only one to the exclusion of all others. The combination of all the theories is called the unitary theory. 

I am positive that you have had the experience were you said to yourself the the is no justice in your country because you read in the paper how some criminal evaded the claws of justice.
So I am going to try and explain criminal law to you as simply as I can. Bear in mind this is not an academic paper. 

Before even considering punishment it has to be determined if criminal liability is present. Criminal liability is based on:
1)Compliance with the principles of legality
2)Complies with the general elements of crime.

1)Compliance with principles of legality
a: ius acceptum : conduct must be recognised or proscribed by statuary or common law.
b: ius praevium : punishment must exist before the act was committed
c: ius certum :crime must not be formulated vaguely or unclearly
d: ius strictum :court must interpret criminal provision narrowly rather than broadly
e: nulla poena : Nulla poena sine lege no penality without statutory provision or legal rule.
  2)General elements of crime
  A: Conduct (voluntary act or ommission)
  B: Compliance with the definition of proscription
  b1: formally defined the description set up by the law for liability for a  
  specific type of crime.
  b2: materially defined proscription which requires causation:
b2a: Factual causation (conditio sine qua non)
 In order to determine the act is the factual cause  
of the prohibited situation all the relevant facts and circumstances must be investigated. It has to be determined by ones knowledge and experience that the prohibited circumstances is a result that flows from the accused act or omission. A simple illustration to show you the application of this theory . X assaults Y and injuries him so badly that he requires surgery. Y dies during the operation. Therefore X conduct is the sine qua non for Y death. If you take away his act the situation will not disappear. However lets say X gives Y poison, the poison that he gives Y takes a long time to work. Before it can work Y has a heart attack owing to natural causes and dies. In this cause X conduct is not the conditio sine qua non of Y death.

 B2a:Legal Causation
The mere fact that conditio sine qua non is present does not mean that a court of law may find that is a causal link between the act and result. The court must prove that not only a factual cause of the prohibited result exists but a that the is a legal cause of the situation.
The are a number of criteria formulated to determine legal causation.
1.The individualisation theory
2.The theory of adequate causation
3.Novus actus inverveniens
4.The foreseeability theory
5.The doctrine of common purpose.
6.Causation by omision
What is the purpose of legal causation.
Well remember X injured Y who need surgery and died as a result. But what if X died as a result of negligence by the Dr Z rather than by the attack by X. If X had not injured Y he will not need surgery and therefore DR Z would not have operated him and he would still be alive. Now factual conditio sine qua non is present. However the is no legal causation therefore X can not be held liable for Y death. He will be liable for assault.

You may be inclined to think that once the two above elements are met nothing else is required. But No! The are two more elements that have to be fulfilled before someone can be held liable and convicted. The next set is to determine weather the act which complies with the definition of proscription is not necessary unlawful.

Take the following example:
X stabs Y and kills him. X act committed the act and the act certainly complies with the definition of proscription. However at this stage the conduct can only be described provisionally or prima facie as unlawful. The state must establish that the are no grounds for justification of X conduct. If Y attack X and X stab him in private defence (self defence) than X conduct is not unlawfull.
Here are some of the grounds for justification 
1)Private defence
4)Obedience to orders
5)Spontaneous agents

a) Criminal capacity
b) Forms of culpability.

a) Criminal capacity
The offender must have the ability to appreciate the wrongfulness of his/her conduct
and he/she must have the capacity to act in accordance with the appreciation of the wrongfulness of his/her conduct.

b) Forms of culpably
 i)Intention the person must have the intention to commit the prohibited act.
The are three forms of intention
a)Dolus directus Direct intention 
X stabs Y with knife with intention to kill him. 

b)Dolus indirectus Indirect intention. 
Prohibited act is not X main goal ex. X is sitting inside his neighbour Y house. From inside his house he wants to shoot a bird on the outside. He realises that by shooting the bird he will brake the window pane . The violation here consists in the fact that X knowing that he will bring that prohibited goes ahead anyway.

c)Dolus eventualis

Ex: X wants to burn a building. He foresee the possibility that Y may be inside but never the less proceeds with his plan, and sets fire to the building. Y is indeed inside and burns to death. In the eyes of the law X intentionally caused Y death.



It is not only acts committed intentional that are punishable. Some times the law punishes acts that are committed unintentionally. the so called calpa acts. this happens when X fails to exercise the care required in the circumstances. Or where he shouls foresee a particular result or circumstances and guard against it, but fails to do so.

This entire blog is only on criminal law and is as basic as it can be. It does not even scratch the topic of criminal procedure.
You may ask yourself is it designed to protect criminals. The answer is a big fat NO.
It is there to protect the interests of society from the abuse of power instilled on the police and criminal courts. All person are innocent until they have been proven guilty in a court of law.


Creation said...

Very informative!

You've raised an important issue very effectively.

To quote Albert Solzhenitsyn- "Justice is conscience, not a personal conscience but the conscience of the whole of humanity. Those who clearly recognize the voice of their own conscience usually recognize also the voice of justice."

Keep blogging.

Creation said...

P.S. There are a few grammatical errors...
Get them corrected if you can... they sort of hinder the flow of the post.

Everthing about nothing said...

Thank u kriti, I hope u wew informed. Maybe u change your major :)

Creation said...



This won't make me change my major... I'm too much in love with literature! :-)