The Distinguishing Mark Of Crime
| Published date | 01 September 1959 |
| Author | Sxton Pollock |
| Date | 01 September 1959 |
| DOI | http://doi.org/10.1111/j.1468-2230.1959.tb00556.x |
THE DISTINGUISHING MARK
OF
CRIME
THE
pursuit of definitions has never appealed much
to
lawyers
because they are aware that the concepts they employ have been
rough-hewn by history and stoutly resist philosophical *formulation.
An exception to the general rule has been the quest for a definition
o€
crime, which has been undertaken with much learning and great
ingenuity only
to
lead to
a
thoroughly disappointing
anticlimax.
The relegation of Kenny’s celebrated discussion
of
the problem
to
gn
appendix
of
his
Outlines
of
Criminal Law
(only to be omitted
altogether in the latest edition) leaves
a
student brought up
on
that
work with the feeling that he has watched the rocket go up-and come
down; but before this sense of deflation is depted
it
may
be
profitable to consider how nearly right the proposed solution was
and to isolate the informing insight that gave
it
such
a
long
and
honburable life. To do this,
it
is necessary to go behind Kenny
to
his
source,
John
Austin.
Austin thought that the characteristic mark
of
a
crime was that
its sanction
is
enforced at dhe discretion
of
the Sovereign.
Kenny
found it necessary to add that the sanction
in
the case of
a
crime is
punitive, but this addition was made simply to take account of the
apparently anomalous case of the enforcement
of
the civil rights of
the Crown which cannot be said to carry any
criminal
implication
merely because the enforcement lies
in
the discretion of the
Crown.
While accepting Austin’s debition, he recast
it
in
a
form that made
Austin’s exegesis of his statement explicit by referring expressly
to
the power of the Sovereign to remit the sanction. The
only
other
modification he found himself obliged to make resulted
from
the
fact
that there are two particular crimes that the Crown has
no
power to
remit, namely, sending a prisoner out of England
to
evade the
protection
of
a
writ
of
habeas corpus,
and the commission
of
a
common nuisance
so
long
as
the nuisance remains
unabated.
The
resultant definition
ran
as follows
:
crimes are wrongs
whose
sanction
is
punitive, and
is
in no way remissible
by
any private person,
but
is
remissible
by
the
Crown
alone, if remissible at all.
This somewhat
complex statement remains, however, only
an
elaboration of the
Austinian formula, which had the merit
of
a
greater simplicity.
What remains puzzling is why Austin should have fastened upon
a
mark of criminal procedure that is wholly exceptional rather than
upon one that is
normal.
It
is clear that the object
of
prosecuting
a
man is not to
let
him
oft,
but to ensure that what society thinks ought
to be done is in fact done; and to suggest that the power
to
pardon
constitutes the distinguishing mark of
a
crime leads one to suspect
that the cart has, somehow, been put before the horse.
This
alone
495
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