Final Word

The never-ending race between crime and the law

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The release of South Africa’s annual crime statistics at the end of September again unleashed a heated debate about the well-being of our society. (Read more)

At the core of this debate is the question: Who is winning the race for dominance in society, the criminals or the law enforcers?

Looking back over recorded history, we discover that this race is as old as mankind itself – as are prohibitions and punishment for violation of those prohibitions, and for that matter, excuses/rationalisations by the perpetrators of those violations.

All these elements, from the prohibitions – or law, if you want – are present in the third chapter of the first book of the Bible, Genesis. Adam and Eve are punished with banishment from Paradise for the violation of the prohibition to feast on the fruit of the tree of the knowledge of good and evil.  

In the Judaist and Christian tradition we find the first example of what we today call ‘codified law’, in the second book, Exodus, of the Bible’s 20th chapter when Moses comes down from the mountain with The Ten Commandments.

There probably were earlier words than ‘crime’ in the various languages to describe transgression of the law. The word ‘crime’, which we use today, came into use long after Adam and Eve were served with their banishment order.

There is some debate among etymologists about the exact origin of the word and even about when it arrived in the English language. They do agree that it arrived in Middle English from the Old French word crimne, but some sources date it to between 1200 and 1250 and others to between 1350 and 1400.

Clearly linking back to the start of it all in the Garden of Eden, the French word and its English version of ‘crime’ meant ‘sinfulness’. The French got the word from the Latin crimen (genitive criminis), which, depending on context, could mean ‘charge, indictment, accusation; crime, fault, or offense’.

Some sources claim that the original Latin root word was cernō, meaning ‘I decide, I give judgment’ and that the original Latin word crīmen meant ‘charge’ or ‘cry of distress’.

The Romans, in turn, got the word from the Ancient Greek word krima (κρίμα), which typically referred to an intellectual mistake or an offense against the community.

The ‘creation’ of crime

Besides the Judaist and Christian traditions, mentioned above, in terms of which certain acts like murder, theft and the like are regarded as punishable crimes, similar categories of crime exist in all societies and cultures.

Under the dominant theory on law, called the natural-law, such crimes or the ‘criminality’ underlying it, derive from human nature. In the language of lawyers it is described by the Latin phrase malum in se, meaning ‘wrong or evil in itself’.

As human society evolved it became increasingly necessary to have an entity to lay down rules and adjudicate in disputes, to ensure safe and orderly co-habitation. Enter the concept of rulers and, later, governments.

This gave rise to a second category of man-made law, by some legal theorists described as originating in the interest of those in power. In this case, in the language of lawyers, it is described by the Latin phrase malum prohibitum, meaning ‘unlawful by virtue of statute’.

As the theory of natural-law goes the distinction between malum in se and malum prohibitum is that the first is inherently criminal and the second only regarded as criminal because a law has decreed it as such.

In ancient, and even early modern times, rulers mostly attempted to have the same status bestowed upon it by claiming that the authority of the king derives from higher authority – that the king was God’s representative on earth.

It is from this ‘criminalisation’ of certain actions, sometimes inaction or omissions that the need developed for enforcement and adjudication agencies, as today represented by police forces and judiciaries.

Final word

From the very start of human society the race for dominance between the law and criminality was on.

And, as the latest crime statistics in South Africa prove, despite a mountain of laws, we are nothing closer to getting back into the Garden of Eden than were Adam and Eve.

by Piet Coetzer

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Final Word

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