CHAPTER 3

Law and Society

This Chapter presents the concept of law, its origin, and its importance in maintaining order in the
society especially in dealing with crimes and delinquencies. Furthermore, it also discusses the society's
perspective on crime as compared to how criminologists view crime. Thus, at the end of this Chapter,
the students are expected to:

1. Understand clearly the origin and nature of law.

2. Discuss or explain the different types of law.

3. Know the important provisions of Philippine Criminal Law involving felony and its elements, different
legal doctrines and principles, and as well as how this law is being applied.

4. Identify the different classification of criminals.

5. Compare and contrast society's perspective and criminologist view on crime.

The Origin And Nature Of Law

The origin of law can be traced back since time immemorial. Its existence guides each and every
individual throughout the history to become more responsible and is capable of determining what to do
and not to do especially in dealing with their fellow individuals in the society. Hence, there are different
theories which explain the beginning of the law and how it developed throughout the process. One
theory of the nature and origin of law is that it is a series of command addressed by a superior to
inferiors. As further explained, it is a rule of civil conduct prescribed by the supreme power in the state,
commanding what is right and prohibiting what is wrong.

Another theory is that law originates in custom or known as "Unwritten Law" which is considered as the
main body of our law. It is not a command or body of commands but it consists of rules springing from a
social standard of justice or from the habits or customs from which that standard has itself been
derived. As a result, there can be no doubt that law is evidenced by custom and that the Court
frequently decides cases in accordance with customs found to exist.

On the other hand, some jurists believe that other than customs or those created by superior authority;
it has been a long standing doctrine that law is based on "Moral Law" or "Natural Law" or known as the
"Law of God". It argues that "the

law of nature is that which God, at the time of the creation of the mind of man, infused into his heart for
his preservation and protection". Furthermore, it suggests that the original source of law was, and in a
sense still is, the moral law as it is impressed on the minds and conscience of men.

Lastly, another explanation on the origin of law is that it is founded based on a "Social Contract", for
which it explained that when a community of persons exist, its moral and/or political obligations are
dependent upon a contract or agreement among them in order to form a society in which they live.
Hence, one of these contracts is the creation of law wherein they all agreed to submit or surrender part
of their rights in return to their protection and security.

Generic Types of Laws

a. Eternal Law - these are laws that have applied since the beginning of time and would exist till the end
of time.

Ex. Law of Gravity

b. Divine Law - those laws made by a deity to govern the affairs of man.

Ex. Islamic Laws as postulated in the Q'uran, The Holy Bible

c. Natural Law - this law is said to be the law that is innate in all mankind and can be deduced through
the use of reason.

d. Human or Positive Law - laws made by man in order to guide the conduct of the members of society.

CLASSIFICATION OF LAWS

a. According to Nature

1. Substantive Law -is the law that creates, defines, and regulates rights.

Ex: Criminal Law, Civil Law

2. Procedural Law - defines the methods or proceedings in the enforcement of the rights and duties
defined in substantive laws. Ex. Rules of Court

b. According to Application

1. Public Law - laws that define the relationship between the State and the individual.

Ex: Constitution, Revised Penal Code

2. Private Law- laws that define the relationship between individuals.

Ex: Civil Code, Commercial Law

c. According to how it is Formulated

1. Written Law- those laws that have been validly enacted by the legislature of a country.

2. Unwritten Law - those that are not enacted by the legislature but is based mainly from judicial
decisions or case law and customary precedence.
d. Other Classification

1. Municipal/Domestic Law - it is the aspect of law which emanates from and has effect on members of
a specific state.

2. International Law - laws which regulate the relationship between countries and is usually in the form
of treaties, international customs, and etc.

3. Common Law in its legal sense, the term Common Law means the law developed by the old common
law courts of the King's Bench, the Courts of Common Pleas, and the Courts of Exchequer. Hence, it is
deemed part of the English Law that is derived from custom and judicial precedent rather than statutes.

4. Law on Equity is a legal system for obtaining a fair result when existing laws do not provide a solution.
Furthermore, it is also considered as the set of legal principles that supplement strict rules of law where
their application operates harshly.

THE BASICS OF PHILIPPINE CRIMINAL LAW

Criminal Law - Is that branch or division of law which defines crimes, treats of their nature, and provide
for their punishment.

Theories in Criminal Law

1. Classical or Juristic Theory it explains that men are rational and calculate beings who guide their
actions with reference to the principle of pleasure and pain. Hence, it clearly emphasizes that an
individual will refrain from committing criminal acts if threatens with punishment sufficient to cancel the
hope of possible gain or advantage.

2. Positivist or Realistic Theory this theory views crime as a social phenomenon and attaches more
importance to the criminal or the actor than in the act itself. It is an advocate of reformation and
rehabilitation for it considered criminal as a sick individual or patient which can be treated and
rehabilitated.

3. Eclectic or Mixed Theory - it is a combination of a positivist and classical theories wherein crimes that
are in economic and social causes should be dealt with compassion, thus, the application is positivist. On
the other hand, crimes which are considered "heinous" should be dealt with in classical approach.

4. Utilitarian or Protective Theory - it is a theory that is based mainly from the classical concept which
justifies the application of punishment for as long as it provides greater or general happiness to the
majority of people in the society.

SOURCE OF CRIMINAL LAW

1. The Revised Penal Code

2. Special Penal Laws passed by the Philippine Commission, Philippine Assembly, Philippine Legislature,
National Assembly, the Congress of the Philippines, and the Batasang Pambansa

3. Penal Presidential Decrees issued during Martial law

Limitations on the Power of the Law Making Body to Enact Penal Legislation under the Phil.
Constitution

1. No ex post facto law or bill of attainder shall be enacted.

An ex post facto law is one which: Makes criminal an act done before the passage of the law and was
innocent when done, and punishes such an act.

Aggravates a crime, or make it greater than it was, when committed;

*Changes the punishment and inflicts a greater punishment than what the law provides

*Alters the legal rules of evidence, and authorizes conviction upon less or different testimony

than the law respaired at the time of the commission of the offense;

*Deprives a person accused of a crime some lawful protection to which he has become entitled.

Bill of Attainder-punishing a person without the benefits of trial.

2. No person shall be held to answer for a criminal offense without due process of law.

Characteristics of Criminal Law

1. Generality - Criminal law is binding to all persons living or sojourning in the Philippine territory

Exceptions to the General application of Criminal Law

a. Treaties or treaty stipulations Ex. Visiting Forces Agreement

b. Law of Preferential application Ex. Diplomatic Representatives And their Domestic Servants under R.A.
75.

c. Public International Law

Ex. Sovereign and other head of state Ambassadors, ministers plenipotentiary, ministers resident, and
charges d'affaires

2. Territoriality Penal laws are applicable only within Philippine territory. Philippine territory as defined
under the Constitution comprises the Philippine Archipelago, with all the islands and waters embraced
therein, and all other territories over which the Philippine has sovereignty including its atmosphere, its
interior waters, and maritime zone However, it provides certain exception involving cases enumerated
under Article 2 of the Revised Penal Code.

3. Prospective A penal law cannot make an act punishable in a manner in which it was not punishable
when committed. Hence, as provided in Article 366 of the RPC, crimes are punished under the laws in
force at the time of their commission, Exception to the Prospective application or Retroactive
application of Criminal law:

a. Whenever the new statute dealing with crime establishes conditions more lenient or favourable to
the accused; and

b. The accused is not a habitual delinquent.

Felony or Delitos - Acts and omissions punishable by the Revised Penal Code. Felonies are committed
not only by means of deceit (kolo) but also by means of fault (culpul

Requisites of Dolo or Malice: a. Freedom

b. Intelligence

c. Intent

Requisites of Culpa or Fault

a. Freedom

b. Intelligence

c. Imprudent. Negligent, Lack of Foresight or Skill

Deceit (Dolo) vs. Fault (Culpa)

There is decrit when the act is performed with deliberate intent; and there is frult when the wrongful
act results from imprudence, negligence, lack of foresight, or lack of skill

Elements of Felony:

1. That there must be an act or omission. act or omission must be punishable by

2. The the R.P.C.

3. That the act is performed or the omission incurred by means of dolo or culpa.

Legal Classification of Felony:

According to the means by which they are committed:

a. Intentional Felony the act or omission of the offender is with malice and the injury cause to another is
intentional.

b. Culpable Felony the act or omission is not malicious and the injury caused is unintentional, it being
simply incident of another act performed without malice. Hence, such wrongful act results from
imprudence, negligence, lack of foresight, or lack of skills.

As to the Stages in the Commission of Crime

a. Attempted Crimes it is attempted when the offender commences the execution of the felony directly
by overt act but does not perform all the acts of execution which should produced the felony because of
causes or accident other than his own spontaneous desistance.

Elements of Attempted Crime

1. The offender commences the commission of the felony directly by overt act;

2. He does not perform all the acts of execution which should produce the felony:

3. The offender's act is not stopped by his own spontaneous desistance

4. The non-performance of all acts of cxecution was due to cause or accident other than me oum
spontaneo desistance.

b. Frustrated Crimes the crime is frustrated when the offender performs all the acts of execution which
should produce the felony as a consequence, but which, nevertheless, do not produce it by reasons of
causes independent to the well of the perpetrator

Elements of frustrated crime:

1. That the offender perform all the acts of felony as a consequence

2. All the acts performed would produce the

3. But the felony is not produced; execution.

4. By reason of causes independent to the will of perpetrator.

c. Consummated Crimes A felony is consummated when all the elements necessary for its execution
accomplishment are present

According to Plurality of Crimes

Formal or Ideal - the offender committed a series acts/crimes but only one criminal liability.
Real or Material - there are different crimes in law as well as in the conscience of the offender, in such
cases, the offender shall be punished for each and every offense that he committed,

According to the Complexity of Crimes

Compound Crime- single act constitutes 2 or more grave or less grave felonies.

Complex Crime Proper- when an offense is a necessary means for committing another

According to the Gravity of Penalty

A. Grave Felonies those which the law attaches the capital punishment of afflictive penalties.

b. Less Grave Felonies those which the law punishes with penalties which are correctional in nature.

c. Light Felonies those infractions of law for the commission of which the penalty of arresto menor or a
fine not exceeding 200 pesos or both is provided.

V. CLASSIFICATION OF CRIMES

A. General Classification

1. Mala In Se-acts that are wrongful and evil of its nature. Even without the existence of the legal
definition of crime it will always be a crime since these acts are detrimental not only to the offender
party but also in the society as a whole

2. Mala Prohibita- acts that are considered crime because of the operation of the law. In context, crime
is not always detrimental to victim or to society but being prohibited for some legal reasons and to
establish order in the community.

B. Classification of Crimes According to Severity of Punishment

1. Felony is an act or omission punishable by the Revised Penal Code, the criminal law in the Philippines
(Reyes, 1960)

2. Offense-is an act or omission punishable by special penal laws.

3. Delinquency or misdemeanor acts that are in violation of simple rules and regulation usually referring
to acts committed by minor offenders.

4. Infractions- are acts in violation of traffic laws and ordinances

C. Legal Classification
1. Public Crime-is defined by Siegel (2004) as "crime which involves acts that interfere with the
operations of society and the ability of people to hunction efficiently", Le, it is behavior that has been
labelled criminal because it is contrary to shared norms, social values, and customs.

2. Private Crime refers to those crimes which can only be prosecuted by the aggrieved party.

D. Criminological Classification of Crimes

1. As to the result of crimes

a. Acquisitive crime - when the offender acquires something as a consequences of his criminal act.

b. Extinctive Crone - when the end result of a criminal act is destruction.

2. As to the time or period committed

a. Seasonal crime - refer to crimes committed in a certain period of the year

b. Situational crime - those committed only when given the situation conducive to its commission

3. As to the length of time committed

a. Instant crimes - those committed in the shortest possible time

b. Episodic crimes - those committed by a series of act in a lengthy space of time

According to the Basis of Criminal Act

A. Crimes Against National Security And The Law Of Nations

b. Crimes Against The Fundamental Laws Of The State

c. Crimes Against Public Order

d. Crimes Against Public Interest e. Crimes Relative To Opium And Other Prohibited Drugs

e. Crimes Committed By Public Officers

f. Crimes Against Public Morals 8

h. Crimes Against Persons

i Crimes Against Personal Liberty And Security

J.Crimes Against Property

k. Crimes L. Crimes Against Chastity

4. As to the place or location of commission

a.Static crimes-tbusse committed only in one place

b.Continuing crimes those committed in several places

5. As to the use of mental faculties

a. Rational crimes-those committed with intention and offender is in full possession of his mental
faculties

b. Irrational criner those committed by a person who does not know the nature and quality of his act on
account of the disease of the mind

6. As to the type of offenders

a. White-collar crimes those committed by a person of responsibility and of upper socio-economic class
in the course of their occupational activities

b. Blue-collar crimes those committed by ordinary professional criminals to maintain their livelihood

7. As to the standard of living of criminals

a. Crimes of the upper world those committed by people of the upper strata of society

b. Crimes of the underworld those committed by members of the lower or underprivileged class of
society

8. Crime by imitation or passion

a. By imitation those committed, the pattern of which is merely a duplication of what was done by
others

b. By passion those committed because of the fit of passion, anger, jealousy, hatred, etc.

CLASSIFICATION OF CRIMINALS

On the Basis of Etiology

Acute Criminals - one who violates criminal law due to the impulse of the moment, fit of passion or
anger, or spell of extreme jealousy

Chronic Criminals - those who commit crime with deliberated thinking, such as:

b.Neurotic Criminals - refer to those insane criminals whose actions arise from intra- psychic conflict
between the social and anti -social components of their personality.

d. Normal Criminals - are those persons whose psychic organization resembles that of normal
individuals except that he identified himself with criminal prototype.
c. Criminaloid - those who are born criminal type whose unlawful acts are caused by an organic
pathological process

On the Basis of Behavioral System

a. Ordinary Criminals - refers to the lowest form of criminal career and will engage only in typical crimes
which require limited skill. Furthermore, they lack organization to avoid arrest and convictions.

b.Organized Criminals - these criminals possess a higher degree of organization to allow them to
commit crimes without being be detected involving those crimes with specialized activities which can
maintained and operated in a large scale. They often employ force, intimidation, violence, and bribery in
order to gain control over economic activities. (e.g. gambling den, prostitution, drug trafficking)

c.Professional Criminals - they are those who are highly trained and possess specialized skills and
knowledge, and have considerable amount of experience in committing crimes and in most cases they
can always escape conviction. Under this type, crime is considered as a primary means of livelihood.
(e.g. Gun for hires, Game Fixing, Counterfeiting)

On the Basis of Activities

A.Professional Criminals - they are those who make and earn their living through criminal activities.

B. Accidental Criminals - they refer to those who commit criminal acts as a result of unforeseen and
unanticipated circumstances.

C.Habitual Criminals - those who continue to commit criminal acts for such varied and divers motive due
to deficiency of intelligence and lack of self-control.

D.Situational Criminals - are those who are not usually considered as criminals but constantly in trouble
with legal authorities.

On the Basis of Mental Attitude

A. Active Aggressive Criminals - those who perpetrate crime in an impulsive manner due to the
aggressive behavior of the offender.

B.Passive Inadequate Criminals those who commit crime because they are urged and pushed to it by
means of inducement, by reward or promise without considering its consequence

C.Socialized Delinquents - those persons who are normal in their conduct and behavior but merely
defective in their socialization process.

Society's Perspective on Crime

a. Crime is Pervasive - that crime causation involves all members of the society either as victim or
offender regardless of age, sex, race, nationality, religion, financial condition, education, and other
personal circumstances.
b. Crime is Expensive - the government and private sector spent an enormous amount of money for
crime detection, prosecution, correction, and prevention.

C.Crime is Destructive - that crime destroys Cerything in its path, hence, throughout the history, many
lives has been lost because of crimes like murder, homicide, and other violent deaths hd many
properties has been destroyed on the account of robbery, theft, and arson

c. Crime is Reflective - this explains that the crime rate or incidence in a given locality is the reflection of
the effectiveness of the social defenses employed by the people Basic example is the crime prevention
program of the police organization.

f. Crime is Progressive this simply means that as population increases the volume of crimes also
increases. Hence, as the years go by, society's response in dealing with crimes improve significantly as it
deals with the increasing problems involving crimes.

Criminologist View on Crime

Every individual has its own perspective on the causes or origin of crime, and how it viewed crime in
connection with the societal norms. However, most of these perspectives are often subjective and it
describes crime merely on a superficial level. Thus, in order to have standard and more objective
understanding on crime. Criminologist developed the following views on crime, to wit:

a. Consensus View - this explains that the majority of citizen's in society share common ideals and work
toward a common good. In such case, crimes are acts that are outlawed because they conflict with the
rules of the majority and are harmful to society. Furthermore, it is the law that defines crime and such
law is implemented equally to all members of the society.

b. Conflict View - the law is controlled by the rich and powerful who shape its content to ensure their
continued economic domination in society. Thus, it reiterates that the criminal justice system is created
as an instrument of social and economic repression. Furthermore, it simply viewed crime as a politically
define concept wherein real crimes such as poverty, corruption, economic problems, food shortage and
others are not outlawed or penalized

c. Interactionist View - this describes that criminal law reflects the values of people who use

their social and political power to shape the legal system. Hence, it is the Moral Entrepreneurs or those
who wage moral crusades to control criminal law is the one who define crimes in order to ensure that it
really reflects their own personal values. Moreover, it also emphasized that crimes are illegal because
society defines them that way.