3.4: What is Law?

Is all criminal behavior deviant and is all deviant behavior criminal? A succinct definition of criminal law is:

A body of written rules governing the conduct of the inhabitants of a community, nation or society enacted by a recognized legal body, congress or parliament establishing criminal sanctions for violation of the conduct.

A criminal body of laws is the state versus the individual with the state taking enforcement action, adjudication of the offense, and punishment phase. A breach of a criminal law is a violation that may result in an enforcement action that could entail monetary loss, loss of liberty (confinement), or additional restitution. Civil law is commonly considered person against person using similar definitions but the penalties are largely monetary based rather than incarceration. Thus lies the answer to the question, “Is all criminal behavior deviant and is all deviant behavior criminal?” All criminal behavior is outside the expected behavior of society and is deviant whereby all deviant behavior does not necessarily rise to the level of criminality.
Laws then are legislative enactments intended to regulate certain human conduct. Laws are not intended to incorporate ethical principles but may be a source of ethical standards that may be sought in the enforcement of the law itself (Banks, 2017).

To begin addressing what is a law and what is an ethical ramification it is important to look at the birth of Criminal Justice (CJ) in America. Initially America was a grouping of 13 colonies and the colonist rejected English rule under a King as supreme authority beginning in 1775. During the same time the American colonist rebuffed England’s laws and the enforcement of those laws. What happened next is commonly known to even those ahistorical students of American heritage. The nation’s founders proclaimed themselves free from English rule by the issuance of the Declaration of Independence. There after ensued a long and costly war with England. However, America emerged victorious and a new sovereign nation with a new system of government, with an untested Constitution.

The grand and glorious document penned into flaming gold by James Madison and our founding fathers enumerating a division of power providing a system of checks and balance. The legislative branch enacts the law, the executive branch enforces the law, and the courts interpret the law. The crafters did not want too much authority vested in a federal government, wanting to preserve balance with states (13 Colonies) hence producing three separate but equally strong branches of government. This required the adoption of the first Ten Amendments of the U.S. Constitution, known as the Bill of Rights.

The term strong branches of government did not come to fruition for the U.S. Supreme Court until the landmark case of Marbury v. Madison, 5 US 137 (1803). The decision from that case held authority of judiciary review having the power to review congressional actions and executive actions and may declare these acts illegal. Although the court was identified within f the first five articles of Constitution, it was not until this ruling by the Court that seized upon its authority to render an act of Congress illegal. Note that this ruling did not occur until approximately 25 years after the ratification of the Constitution.