The administration of Justice has been already defined as the maintenance of right within a political community by means of the physical force of the state. It is the application by the state of the sanction of force to the rule of right. We have now to notice that it is divisible into two parts, which are distinguished as the administration of civil and that of criminal Justice. In applying the sanction of physical force to the rules of right, the tribunals of the state may act in one or other of two different ways.
They may either enforce rights or punish wrongs. In other words, they may either compel a man to perform the duty which he owes . But if he have not sufficient power to besiege him, let him ride to the Justice, and beg aid of him. In a civil proceeding the plaintiff claims a right, and the court secures it for him by putting pressure upon the defendant to that end; as when one claims a debt that is due to him, or the restoration of property wrongfully detained from him, or damages payable to him by way of compensation for wrongful harm, or the prevention of a threatened injury by way of injunction.
In a criminal proceeding, on the other hand, the prosecutor claims no right, but accuses the defendant of a wrong. He is not a claimant, but an accuser. The court makes no attempt to constrain the defendant to perform any duty, or to respect any right. It visits him instead with a penalty for the duty already disregarded and for the right already violated; as where he is hanged for murder or imprisoned for theft. Both in civil and in criminal proceedings there is a wrong (actual or threatened) complained of.
For the law will not enforce a right except as against a person who as already violated it, or who has at the least already shown an intention of doing so. Justice is administered only against wrongdoers, in act Or in intent. Yet the complaint is of an essentially different character in civil and in criminal cases. In civil justice bib amounts to a claim of right; in criminal Justice it amounts merely to an accusation of wrong. Civil Justice is concerned primarily with the plaintiff and his rights; criminal Justice with the defendant and his offences.
The former gives to the plaintiff, the latter to the defendant, that which he deserves. A wrong regarded as the subject-matter of civil proceedings is called a civil wrong; one regarded as the subject-matter of criminal proceedings is termed a criminal wrong or a crime. The position of a person who has, by actual or threatened wrongdoing, exposed himself to legal proceedings, is termed liability or responsibility, and it is either civil or criminal according to the nature of the proceedings to which the wrongdoer is exposed. The same act may be both a civil injury and a crime, both forms of legal remedy being available.
Reason demands that possible, the law should not only compel men to perform their disregarded duties, UT should by means of punishment guard against the repetition of such wrongdoing in the future. The thief should not only be compelled to restore his plunder, but should also be imprisoned for having taken it, lest he and others steal again. To this duplication of remedies, however, there are numerous exceptions. Punishment is the sole resource in cases where enforcement is from the nature of things impossible, and enforcement is the sole remedy in those cases in which it is itself a sufficient precautionary measure for the future.
Not to speak of the defendant’s liability for the sots of the proceedings, the civil remedy of enforcement very commonly contains, as we shall see later, a penal element which is sufficient to render unnecessary or unjustifiable any cumulative criminal responsibility. We have defined a criminal proceeding as one designed for the punishment of a wrong done by the defendant, and a civil proceeding as one designed for the enforcement of a right vested in the plaintiff. “We have now to consider a very different explanation which has been widely accepted.
By many persons the distinction between crimes and civil injuries is identified with that between public and private wrongs. By a public wrong is meant an offence committed against the state or the community at large, and dealt with in a proceeding to which the state is itself a party. A private wrong is one committed against a private person, and dealt with at the suit of the individual so injured. The thief is criminally prosecuted by the Crown, but the trespasser is civilly sued by him whose right he has violated.
Criminal libel, it is said, is a public wrong, and is dealt with as such at the suit of the Crown ; civil libel is a private wrong, and is dealt with accordingly by way of an action for damages by the person libeled. But this explanation is insufficient. In the first place, all public wrongs are not crimes. A refusal to pay taxes is an offence against the state, and is dealt with at the suit of the state, but it is a civil wrong for all that, Just as a refusal to repay money lent by a private person is a civil wrong.
The breach of a contract made with the state is no more a criminal offence than is the breach of a contract made with a subject. An action by the state for the recovery of a debt, or for damages, or for the restoration of public property, or for the enforcement of a public trust, is purely civil, although in ACH case the person injured and suing is the state itself. Conversely, and in the second place, all crimes are not public wrongs. Most of the very numerous offences that are now punishable on summary conviction may be prosecuted at the suit of a private person; yet the proceedings are undoubtedly criminal none the less.
We must conclude, therefore, that the divisions between public and private wrongs and between crimes and civil injuries are not coincident but cross divisions. Public rights are often enforced, and private wrongs are often punished. Importance of Justice Salmons- Definition of law itself reflects that administration of Justice has to be Pound- It is the court who has to administer Justice in a state. Both Rose Pound and Salmons. Rose Pound stresses more on courts whereas Salmons stresses more on the State. Function of State a. B. War If a state is not capable of performing these functions, it is not a state. . Salmons said that the administration of Justice implies maintenance of rights within a political community by means of the physical force of the state. E. However orderly society may be, the element of force is always present and operative. It comes latent but it still exists. F. In a society, social sanction is an effective instrument only if it is associated with and supplemented by concentrated and irresistible force of the community. Social Sanction cannot be a substitute for the physical force of the state. G. Origin and Growth I.
It is the social nature of men that he wants to live in a community. It demands that he lives in a society. This leads to conflict of interests and gave rise to administration of Justice. This is the history and growth of administration of Justice. It. In the next phase, the state was trying to come into force. The so called state was not strong enough to regulate crime and to give punishment to criminals. There was law of private vengeance and self-help. Iii. State comes into existence. With the growth and power of the state, it began to act like a Judge to assess liability and impose penalty. Justice is a natural corollary to the growth in power of the political state. Advantages and Disadvantages of Legal Justice a. Advantages of Legal Justice Uniformity and Certainty- There is no scope of arbitrary action and even the Judges have to decisions according to the declared law of the country. As law is certain, people can shape their conduct accordingly. Law is not for the convenience for the special class. Judges have to act accordingly. It is through this that impartiality is secured in administration of Justice. Coke says that the wisdom is law is wiser than any man’s wisdom.
Justice represents wisdom of the community. B. Disadvantages of Legal Justice It is rigid. Society changes more rapidly than legal Justice. Technicalities and Formalities It is complex. Our society is complex. To meet the needs of the society we need complex laws. Salmons says Law is without doubt a remedy for greater evils yet it rings with it evils of its own. Public Justice- Classification of Justice. It can be divided into two parts Private Justice- It is distinguished as being Justice between individuals. Private Justice is a relation between individuals.
It is an end for which the court exists. Private persons are not allowed to take the law in their own hands. It reflects the ethical Justice which should be there between individuals. B. Public Justice- It is administered by the state through its own tribunals. It is a relation between the courts and individual on other. Public Justice is the means by which courts fulfill that ND of Private Justice. What the court renders to the people in the form of Justice, it is not actually in the so called sense. We cannot call it Justice because Justice rendered is always according to law.
The reason is Judges are not legislators, they are the interpreters. It is not the duty of the Judge to correct the defects in law. The only function of them is to administer the law of the country and therefore, in the modern state, the administration of Justice according to law is commonly taken to imply recognition of fixed rules. Civil and Criminal Justice dominant, important distinctions are in the legal consequences. Civil Justice is administered by a particular set of courts whereas Criminal Justice is administered by a different set of Courts.
If successful, civil proceedings result in a Judgment for damages or injunction or restitution or specific decree or other relief which are known as civil. If successful result in a number of punishment which may range from hanging to fine or release on probation. Therefore, he says that the basic objective of criminal proceeding is punishment and the usual goal of civil proceeding is not punitive. Criminal Justice The Definition of Crime The difference between criminal and civil wrongs is not clear-cut. Broadly, crimes are broadly offences against the public while offences against private persons are civil wrongs.
There are some offences against the public and the State (such as the non- payment of taxes) which are not considered to be criminal offences though, and there are offences against individuals (such as murder) which are considered to be criminal. Further, some acts like defamation are both civil wrongs and criminal offences. Austin said that a wrong which is pursued by the sovereign or his braininess is a crime while a wrong which is pursued at the discretion of the injured party and his representative is a civil injury. The Indian Penal Code does not define what a crime is.
It merely says that the word ‘offence’ denotes a thing made punishable by the Code in Section 40. Different scholars have defined ‘crime’ from different perspectives. Crime as a public wrong: Initially, Blackstone defined crime as ‘an act committed or omitted in violation of a public of a public law forbidding or commanding it’. He later modified his definition to ‘crime is a violation of public rights and duties due to the whole community insider as a community. James Stephen modified this definition as follows: A violation as regards the community at large.
Crime as a social wrong: John Killing defined crime as ‘an act that has been shown to be actually harmful to society or that is believed to be socially harmful by a group of people that has power to enforce its beliefs and places such an act under the ban of positive penalties. Crime as a procedural wrong: Russell said that criminal offences are basically the creation of a criminal policy adopted from time to time by those sections of community who are powerful enough o safeguard their own security and comfort by sovereign power. Other scholars have defined crime by simply listing its characteristics.
For example, Edwin Sutherland defined crime as a body of specific rules regarding human conduct which have been promulgated by political authority which apply uniformly to all members of classes. And Rose Pound solved the problem of defining crime by simply saying that it is impossible to define crime because ‘law is a living, changing thing which may at one time be based on sovereign will and at another time on Juristic science, which may at en time be uniform, and at another time give much room for Judicial discretion, which may at one time be more specific in its prescription and at another time much more general’.
What is Punishment In criminal law, Any pain, penalty, suffering, or confinement inflicted upon a person by the authority of the law and the Judgment and sentence of a court, for some crime or offense committed by him, or for his omission of a duty enjoined by law. Theories of Punishment a. Deterrent Theory- Salmons says that deterrent aspect of punishment is very important. Object of punishment is not only to prevent the wrongdoer second time but also to make him an example to other persons who have criminal tendencies.
The aim of this theory is not revenge but terror and as per this theory an exemplary punishment should be given to the criminal so that others may take lesson from him. Even in Manuscript, this theory is mentioned. He said “Penalty keeps the people under control, penalty protects them, and penalty remains awake when people are asleep, so the wise have regarded punishment as the source of righteousness. Critics say that it is not effective in checking crime. . Preventive Theory- The object of punishment is preventing or disabling and it disables a person from committing a crime in future.
Deterrent theory aims at giving a warning to society at large whereas in Preventive Theory, the main is to disable the wrongdoer from repeating of the activity, his physical power to commit crime is disabled in this theory. C. Commits a crime, he does not cease to be a human being, he may have committed under circumstances which might never occur again. The object of punishment should be to bring about the moral reform of the offender. Therefore, under this hurry, there are certain guidelines given: I.
While awarding punishment, the Judge should study the characteristics and the age of the offender, his early breeding, the circumstances under which he has committed the offence and the object with which he has committed the offence. The object of this exercise by the Judge is to acquaint him with the exact nature of the circumstances so that he may give a punishment which suits the circumstances. Advocates say that by sympathetic, tactful and loving treatment of the offenders, a revolutionary change may be brought about in their characters. Critics say that
Reformative Theory is alone not sufficient, there should be compromise between the Deterrent Theory and the Reformative Theory. The Deterrent Theory must have the last word. ‘v. Distinction It stands for the reformation of the convict but the Deterrent Theory wants to give exemplary punishment so that the others are deterred from following the In Deterrent Theory, the criminal is not reformed whereas in the course. 2. Reformative Theory, it will want to punish the criminal as little as possible. Under Reformative Theory, it is said that if we inflict harsh punishment on criminals, there will be no scope for reform. It is said that the fundamental principle of Deterrent Theory, punishment should be determined by the character of the crime and too much emphasis is on the crime and not on the criminal. In Reformative Theory, the circumstances under which the offence was committed must be taken into consideration and every effort should be made to give a chance to the criminal to improve himself in future. D. Retributive Theory- In primitive society, the punishment was mainly retributive and the person wronged was allowed to have his revenge against the wrongdoer. The principle was “an eye for an eye”.
This principle was recognized and followed. Another view of retributive theory is that it is an end in itself, apart from a gain to the society and the victim, the criminal should meet his reward in equivalent suffering. E. Theory of Compensation- Punishment should not be only to prevent further crime but it should also exist to compensate the victim. Critics point out that this theory is not effective in checking crime. The purpose behind committing a crime is not always economic. Imposing fine will not lower down the crime though it might prove to be beneficial to the victim.
Under this theory, the insemination is paid to the persons who have suffered from the wrongdoing of the government. A. Capital Punishment This punishment is available right from the primitive ages and it was one of the most important punishments since ages. Even our PC prescribes for it. But several countries have abolished capital punishment and this ideology has affected the Indian Judiciary while considering Capital Punishment. A laxity has come in the minds of Judges while awarding this punishment. In Arguable Sings v. State of Harlan, Supreme Court accepted that the murder was treacherous but still Life Imprisonment was given. Deportation or Transportation- a. It was in practice under the British Era. It was considered as a punishment at that time. The criminal is put in a secluded place or in a different society. Critics say that the person will still cause trouble in the society where he is being deported. C. Corporeal Punishment- This punishment is abolished in our country but it exists in some Middle Eastern Countries. Critics say that it is inhuman and ineffective. D. Imprisonment- I. It serves the purpose of three theories, Deterrent, Preventive and Reformative. It. Under Deterrent Theory, it sets an example. Iii.
It disables the offender thus serving the purpose of Preventive Theory lb. If the government in reforming the prisoner, thus serving the purpose of Reformative Theory. V. There are certain disadvantages. A. Short Term- It is disadvantageous. B. Long Term e. Solitary Confinement- It is an aggravated kind of punishment. It is said that it exploits fully the sociable nature of men. Critics say that it is in human. F. Indeterminate Sentence- g. The accused is not sentenced for any fixed period.