How does law do it?

Introduction

One useful way of approaching the way in which law functions is through the distinction between criminal law and civil law.

The distinction between criminal law and civil law

Criminal law prohibits certain types of anti-social conduct such as murder, rape, theft and dangerous driving.

The policy decision as to whether a specific type of conduct should be classified as criminal or civil will depend on how harmful to society and its members the conduct in question is thought to be. In order to understand how this policy decision is made, it will help if you first understand the practical consequences which flow from something being classified as either criminal or civil.

The first practical consequence is that, in the case of criminal law, the state itself (acting mainly through the police and the Crown Prosecution Service, but sometimes through other institutions such as local authorities) will investigate allegations of illegality and also bring legal proceedings. On the other hand, where conduct is classified as a civil wrong, it is left entirely up to the victims to assemble the evidence and formulate the legal arguments which will be necessary in order to support their claims, and to decide whether to bring proceedings in the courts.

The second practical consequence is that where guilt is either admitted or proved in criminal proceedings, the court will impose sanctions which will be enforced automatically. Moreover, these sanctions will usually be intended, in principle, to be either punitive (such as fines), or reforming (such as probation) or perhaps even an uneasy combination of the two (such as imprisonment). The fact that the courts exercising criminal jurisdiction may also be able to award compensation for financial loss represents only a small exception to the general nature of criminal sanctions.

On the other hand, where judgment has been obtained in civil proceedings, it is left entirely to the victims to decide whether to enforce whatever orders the courts may make. Moreover, these orders will very seldom be intended to be either punitive or reforming, but will focus instead on compensating claimants or protecting them against further wrongdoing; or, sometimes, both.

By way of an example, suppose your neighbour erects a fence in such a way that it trespasses on your garden. If you choose not to enforce your rights, no official or agency of the state will force you to do so, or do so on your behalf. Suppose, however, that you have chosen to enforce your rights and that the court has made orders in your favour, requiring your neighbour to remove the fence from your garden and pay you damages. Although you have obtained two remedies, you may well decide that all you really want is to have the use of your garden back. If this is so, you may well decide to require your neighbour simply to move the fence, without also requiring the payment of damages. The law leaves this choice entirely up to you.

As a final footnote to the distinction between criminal and civil law, it is worth saying that a single piece of unlawful conduct may be both criminal and civil. For example, suppose A assaults B. A may be successfully prosecuted in a court exercising criminal jurisdiction, where the result may be some kind of penalty such as a fine. Whether or not there is a successful prosecution, B may sue A in a court exercising civil jurisdiction and, if successful, obtain damages.

If you think it strange that a claim for damages may succeed where a prosecution has failed, you may be immediately congratulated on having read the text carefully and critically. However, the answer is quite straightforward. In a criminal case the prosecution needs to produce evidence which is convincing enough to prove that the defendant is guilty beyond a reasonable doubt. In civil cases, on the other hand, claimants can succeed on evidence which is significantly less convincing, because the standard of proof in civil cases is only the balance of probabilities. In other words, claimants in civil cases need only show that it is more likely than not that what they allege to have happened did actually happen.