In order to fully understand the breadth and scope of what constitutes a crime and why, one must look to the past and the nature of our society as well as its theoretical and sociological underpinnings. The philosophy and political theory which is most compelling runs from the discourse of Plato to theory of John Locke and Thomas Hobbs. Plato discussed society and thought, Reason and Utopia, in other words, how do we create a perfect and idyllic society and what was Mans' place in that society?.Locke and Hobbs were thinkers who were very influential on the Founding Fathers of our country when they drafted United States Constitution. Locke and Hobbs said that people were born into a "State of Nature", which basically means anarchy, no rules, and no government. What does this mean?.
As an example, let us say, that one thousand people of all ages, sizes, educations, races and religions were dumped on an island with limited resources and no government, rulers, or laws. What would happen? Would everyone be treated equally and be taken care of? Would they be clothed, fed, and protected? Would the inherent goodness of people come shining through for the best interests of all? Well, according to Locke and Hobbs and most others, something quite different would occur. "Human Nature" would take over and Darwinian "Survival of the fittest" would prevail.The strong would take from the weak and horde resources for themselves. The dominant groups, say seven hundred of the thousand were of the same race and religion. They probably would ban together and enslave the others.
If there were ten equal groups they might war between themselves with the strongest groups becoming dominant.With no laws, people could kill, rape, rob, beat and enslave with impunity, Platos' Utopia would be nowhere be found. So what happens? How and why are societies formed? The answer, according to Locke and Hobbs, lies in the creation of a "Social Contract".A "Social Contract" is where individuals "give up" certain "rights", so that they gain other "rights" in order to live in peace and with freedom within a society. Let's go back to our island of one thousand. Let's say everyone has some food and shelter and likes being alive.
Now, in a "State of Nature" each individual would be free to do whatever act they wished. They could take another's' property by force, and if they did not like someone they could kill them without societal restraint or intervention. This is not desirable to any individual or group unless they are the strongest.Instead, all one thousand get together and form a social contract saying that on this island, the individual will give up their right to kill and steal from other, if others give up their right to steal from and kill the individual and thus a society is formed and the "Rule of Law" prevails.Now, we have discussed in a theoretical way, why a Hobbsian "State of Nature" is undesirable and why a "Social Contact" and the formation of a Society with the "Rule of Law" is beneficial and why people are willing to "give-up" certain "rights" to "gain" other "rights" which will make the quality and expectancy of life greater.In our island example, two acts or crimes, murder, and theft were illustrated.
One, murder is a crime against a person, the second, theft, is a crime against a persons' property. These are the easy ones. In any basic society they are understood as being against the laws of the community. They derive from our desire as individuals and as a group to be safe from the tyranny of others.Before we go further we must understand why a social contract works.
A social contact works because everyone "within" the society agrees to it. It may be and probably is written down, but it is not the writing which makes it powerful, it is the agreement.Let us take another example. In Los Angeles we have traffic lights.
It is clearly written down in the California Vehicle Code that basically, green means "go", red means "stop", and yellow means "caution, proceed to stop". You have probably never seen a Vehicle Code and almost certainly do not know the code section numbers for traffic light violations, yet we all know what these lights mean.These lights work only because we all agree, as part of an understood social contract, to obey these rules.
There is no physical universal property about a red light that makes us stop or a green light that makes us go. These easily could have evolved as different colors. It is also not that there is code section stating that we must stop at a red light that we, in fact, stop.If everyone in Los Angeles decided to "run" red lights all of the time, there are not enough police officers or courts to do anything about it.
The reason we stop at red lights is so that we won't be killed or injured while in the course of our daily lives. The reason we go on green is because we believe it is generally safe. We do this not only for safety of ourselves but for the safety of those we love and care about. We also do this for practical reasons. Imagine Los Angeles with all of its vehicles and no traffic lights. It would take you three days to cross town and you might make it to you destination alive and uninjured.
We only think we obey traffic light because to not do so is against the law.If you think this is the case, let us look at the yellow light. What it means at law is "caution, prepare to stop" yet many people who adhere to the social contract treat the yellow light as either "keep going" or even "speed up!" As Shakespeare may have said as to the yellow light, it is a "rule more observed in its breach". The same could be said for many stop signs in Los Angeles, thus the advent of the term "California rolling stop".
Most people choose to live within the Social Contract. It is people who choose to act or live outside of the social contract that our laws treat with the charging of crimes.We live in a society that is brimming over with rules and laws from the obvious, murder, rape, robbery, and arson to the ridiculous, no cats in the park. Most of us do not even realize how many laws and rules we adhere to at all times. Which direction we park our cars on the street and how far from the curb as examples. We are ordered in the electrical wiring in our homes to the standards of the roofs.
. We are regulated in how loud we play our music and at what times, to where we can ride our bicycles and where our children must sit as formal laws, to the five day work week as more informal ones.The social contact and our laws change as society changes. Domestic violence used to be considered a "private matter". Drunk drivers were aloud to "sleep it off" and go home.
These have clearly changed and have become serious offenses. The regulation of prescription medication and the way our corporations conduct their accounting are other recent examples of how the laws of our society are constantly evolving and changing.Our current social contract also makes the criminal justice system the "dumping ground" for many of society's social health issues. Mental illness and substance abuse, clearly social health issues are currently charged as crimes and funneled through the courts and jails.This article has illustrated some of the reasons behind the modern evolution of crime and why we have crimes. There are, Federal, State and Local laws which appear in codes such as the California Penal Code which enumerates all State crimes and their elements.
People who violate these laws are often caught and charged because they act outside of our social contract and violate the laws of our society. Understand, that despite statistics showing high crime rates on a per capita basis crime is low because most people adhere to the social contract and choose not to violate its laws.Remember , there are not enough police or courts to handle the volume if everyone violated the law. If everyone with Marijuana in California where to show up at once at their local police station, the system would crumble. The laws are supposedly and basically a form of public policy in the form of safety regulations with punitive measures so that the vast majority can live in peace. This is our social contract and they answer to why there are crimes.
Are you living in Peace?..Jeff Rubenstein is a criminal defense attorney and former prosecutor who teaches Public Policy at National University.
The Law Offices of Jeffery K. Rubenstein are located at 1849 Sawtelle Blvd. Suite 640 , Los Angeles, CA. 310-477-2100 http://www.jkrlaw.com, jkrlaw@gmail.
By: Jeffery Rubenstein