J. J. Baloch
Though the origins of crime and punishment are linked with the origins of the statehood yet the punishment for wrongdoing is tied with human origin on earth. The evolutionary phases of what is wrong and what is right for humans as thinking social animals described by culture, religion and state. From deviance down to sin and crime, wrongdoings have been punished with different sanctions. However, the system of formalised punishment has been birthed by the state.
In primitive societies where the existence of religion as a fear factor behind expected behaviours had been obscure the human common sense and rational thinking can be credited as the sole force behind declaring certain acts as wrong invoking certain punishments. The anthropologists and sociologists are not sure as to when exactly this started at a certain point of time yet they maintain that the human society has never been without fundamental concepts of expected behaviours.
The state of nature as described by Hobbes, Locke, and Roseau as a pre-social and pre-political condition of human civilisation is said to have followed certain unwritten rules called customs and norms. The customs and norms have always regulated human behaviour and have greatly influenced human thinking on human living. It is interesting to note that some unwritten customs have been more effective than modern legal codes on both the adoption as well as the implementation by their respective communities.
The unwritten codes have been effective because of many reasons. The first and the foremost force behind acceptance of such unwritten rules have been the strong sense of ownership of concerned communities who evolved and adopted those unwritten rules. Secondly, ownership of such customs by the communities was based on the basic premise that such rules were made by those communities adopting and implementing them. Thirdly, the unwritten customs had behind the driver of cultural moralism which was the way of life of the people in the state of nature as discussed in the political theory of social contract.
It was perhaps the reason why the French Enlightenment philosopher JJ Roseau always idealised the natural societies by painting the state of nature or pre-state societies as ideal conditions of human civilisations. Unlike Hobbes who believed that the human life in the state of nature was miserable and anarchic, a condition which underlined the need of formalised social institution of the state, JJ Roseau maintained that early societies relied on unwritten customs that often were more rigid than the written rules and were followed voluntarily rather than they were enforced by legal sanctions but the state was created for developing a system of progress, development, and advancement in an organised and systematic way.
The unwritten rules are more rigid and uncompromising and people in many cultures voluntarily and willingly follow them as a part and parcel of their very identity, name, fame, survival and success. In some cultures, public behaviour is very determined and disciplined so much so that that strictly follow when to stand, sit, eat, sleep etc. “There is little argument that the earliest laws were derived from folk customs, evolving from loose but unquestionable rule to fixed but more specific practices. Until relatively recently, many anthropologists scoffed at the notion of legal life in primitive cultures but instead saw ‘custom as the king’.” Law has always existed in one form or another. Without rules to maintain order and to make progress, anarchy threatens the very existence of a community.
Therefore, “one of the most intriguing questions facing anthropologists, criminologists, sociologists, and other scholars of governance and justice systems as to how the earliest pre-literate societies managed to not only survive but also maintain peace and order without written law codes.”( Michel P. Roth-2010)
In addition to human culture, the ideas of Godhood as supernatural powers in the forms of different religions have played a leading role in the development of what we understand criminal justice system in modern terminology. The punishment has been the main instrument for religions to inspire fear in people. However, greed for rewards such as paradise has also tempted many for following the line of religious doctrines. Wrongful acts are declared sins which are the individual acts for which the doer is personally responsible to God.
“When the members of a society believe that consequences of a sinful act will spread to the entire group, rather than affecting just the sinner, sins become crimes.” Any breach of custom or injunction would invoke the wrath of their gods against the breaching individual his community. The responsibility and punishment were collective in nature. The highly punishable acts have been profanity, blasphemy, and sacrileges while the punishments of dunking, stoning, and whipping were used to humiliate the sinners. Therefore, it goes without saying that the religious injunctions have been a very impactful influence in controlling human behaviour and disciplining them.
The birth of state paved the way for the dawn of the written laws. The state was believed to be the divine institution -the idea of statehood which was challenged by many Greek philosophers like Plato and Aristotle but was dumped by Machiavelli, an Italian philosopher who maintained that state was human, not a divine institution. Further JJ Roseau challenged the all kinds of rulerships by advocating for popular sovereignty in his concept of ‘General Will’ which maintained that right to rule rests with the people and social contract between the state and communities was not absolute but rather conditional. People agreed to obey laws and pay taxes in exchange for their protection of life, property, and civil liberties.
The theory of General Will sparked revolutions for civil liberties. The most important following the theory was French Revolution and American war of independence during the second half of the 18th century. The evolution of the state came with the concept of citizenship. In addition, the concept of individual property rights made individuals the distinct social entities with economic powers. Before this, all property in the empire belonged to kings who had sole wish to allow to any subject who had no rights but slaves.
Here laws were made to clear the rights and duties of all the signatories of the social contract including the state and its citizenry. From here was born the concept of constitutions and the modern criminal justice system comprising police, court and prisons came into shape during the revolutionary times of the last quarter of the 18th century.
The Bill of Rights, the American Constitution and many other constitutional documents came into existence describing the nature and functions of the state underlying the rights and duties of the citizenry. However, E. Adamson Hoebel in his study of primitive law maintains that the code of Hammurabi is a well-preserved Babylonian code of ancient Mesopotamia and oldest deciphered written document with significant length in the world dating back to 1754 BC.
The writing and codification of law especially constitutional, penal, and criminal defined certain acts as crimes punishable under the penal codes. In Eighteenth-century England the most serious secular crime was treason and the most serious religious offence was sacrilege. But today human rights violations are considered as the serious crimes against the laws and values of postmodern culture is based on civil liberties. In primitive times humans saw threats to their communities more seriously than the threats to the states which came to limelight during the middle ages and which still continues to struggle against the modern human rights discourse of the world without borders.
State functions through its laws and the source of ancient laws were the kings and of modern law the people: for the people, of the people, and by the people. Crime is what the law says it is, to put it very simply. not every violation of the law is the crime nor yet it is a sin or deviance. However, crime is classified in six major categories i.e. violent crime, property crime, public order crime, white collar crime, organised crime and cybercrime. Punishment for these types of crimes varies from restitution, fines, probation, imprisonment, and death sentence.
Therefore, the criminal justice system has existed in human society in one or another form and has undergone different phases of evolution. Criminal justice is the system of practices and institutions of governments directed at upholding social control, deterring and mitigating crime, or sanctioning those who violate laws with criminal penalties and rehabilitation efforts.
Today Pakistan stands with criminal justice troika -three parallel justice systems: Jirga -a culture model, Shariah – religious model, and criminal justice -rule of law model. Ultimately, it makes us believe that we are witnessing anarchy and violence in our society because we are left with neither of these three systems intact but function in stark conflict.
We need to transform our conflict model into a consensus model where we should not have any difference on core values of crime and punishment.
The Writer is Policing Educator and Practitioner …