Distinction between Crime & other wrongs – at Common Law

Author: Aviral Umrao, Research Associate

Civil law, or continental law, is the predominant system of law worldwide, with its origins in Roman law, and sets out a comprehensive system of rules, usually codified, which are applied and interpreted by judges. Common law is the legal system that developed in England. Common law began to be developed primarily through custom and verbal law before laws were written down. Conversely, civil law developed out of the Roman law of the Emperor Justinian’s time in the 6th century. In later times, civil law became codified as local compilations of legal principles that were recognized as reflecting the culture of the community. Now that we have defined civil and common law in an historical context, we can look at the two divisions of common: criminal and civil law.

Criminal Law

Crimes as public wrongs, is a longstanding idea within the field of law. Its role in, say for example, English Law has been explicitly affirmed by Blackstone in his Commentaries on the Laws of England ((William Blackstone, Commentaries on the Laws of England, Book 4 (Oxford: Clarendon Press, 1765-1769), p. 5.)). Recently, the idea of ‘public wrongs’ has also gained prominence among those working on the normative issues in criminalization, most notably in the works by Duff and Marshall ((Antony Duff and Sandra Marshall, “Criminalization and Sharing Wrongs”, Canadian Journal of Law and Jurisprudence 11(1) (1998): pp. 7-22; “Public and Private Wrongs”, in James Chalmers et al. eds.)). Criminal law is concerned with protecting the citizens of a community from actions that disturb the social order of that community, such as murder and assault. This body of law provides a set of rules for peaceful, safe, and orderly living. People that break these laws can be prosecuted, and if found guilty, could be fined or sent to prison, or both. Because criminal law deals with protecting the community as a whole, the government is empowered to enforce it ((Essays in Criminal Law in Honour of Sir Gerald Gordon (Edinburgh: Edinburgh University Press, 2010), pp. 70-85.)). A crime must be defined by references to the legal consequences of the act ((Criminal law theory and doctrine: A.P. Simester and G.R. Sullivan)).


In criminal law, the legal action which is also know as a suit, is initiated by the  prosecutor who decides whether to bring charges and what charges to bring.  A criminal law attorney represents a defendant who is being prosecuted by the state or federal government for an act that has been classified as a crime. In a criminal proceeding, an individual is considered innocent until proven guilty. The defendant has the right to plead not guilty and be tried in a court ((Criminal law Concentrate: Rebecca Huxley Binns)).

Burden of Proof

The burden of proof in criminal law is completely on the state to prove its case. The state (the prosecution) must prove that the defendant satisfies each element of the definition of a crime and that his participation was beyond a reasonable doubt. The defendant retains the presumption of innocence until proven guilty by the state.  The prosecutor in a criminal law case must prove to the judge or jury “beyond a reasonable doubt” that the defendant is guilty of the crime charged. Although this does not mean proof beyond all possible doubt, it is a heavier burden of proof than required in civil cases. At the end of a trial, the judge or jury can only find the defendant guilty if they are left without a reasonable doubt about the defendant’s guilt ((The Differences between Criminal and Civil Law: Bruce Cantrell, CISSP 79103)).

Types of Activities

Any act or failure to perform an act as designated by public law is considered a crime.  Most crimes consist of three elements: an act (actus reus), a mental state (mens rea), and the intent to do social harm.  In a criminal case, the defendant is charged with a crime against society such as murder, burglary, robbery, or theft. In criminal law, police generally must first obtain a search warrant in a proceeding showing a “neutral and detached” magistrate that there is “probable cause,” before searching or seizing items from a person’s house. Crimes classified as misdemeanours include less serious offenses that are normally punishable by a fine, such as some traffic violations, petty theft, or possession of a small amount of marijuana. Felonies include more serious offenses that warrant imprisonment of one or more years, such as rape, grand theft, assault and battery, assault with a deadly weapon, or homicide/murder ((Criminal law theory and doctrine: A.P. Simester And G.R. Sullivan)).

According to Fletcher, “Blackstone had a point in identifying crimes as public wrongs and torts as private wrongs ((George Fletcher, “Domination in Wrongdoing”, Boston University Law Review 76 (1996): pp. 347-360 at p. 347.)).” Private wrongs, for Blackstone, refer to “an infringement or privation of the civil rights which belong to individuals, considered merely as individuals”, while public wrongs refer to “breach and violation of the public rights and duties, due to the whole community, considered as community, in its social aggregate capacity… it affects the individual, and it likewise affects the community.” Indeed, in this general and vague sense, one may plausibly extend this notion of private wrongs beyond torts, to other kinds of civil laws in our common law systems, for example contracts. Just as torts are concerned with private wrongs in the sense that they are wrongs, not to the whole community at large, but to individuals qua individuals, contracts are concerned with wrongs, also not to the whole community at large, but to individuals (groups of individuals or legal persons) qua contractual parties ((Florida State University Law Review 39 (2011): pp. 43-64 at p. 46. “The Concept of a Civil Wrong”, in David Owen (ed.), Philosophical Foundations of Tort Law (Oxford: Clarendon Press, 1995), pp. 29-51.)). If this is the case, then one can generalize and say that criminal law is concerned with public wrongs, while torts and contracts are concerned with private wrongs.


The main intention of the civil law is to protect individuals against one another specifying the rights and duties of individuals. For example if we look at individuals using the highway, road users have a duty of care to other individuals using the road. If for example one individual road user is driving in a poor manner and causes an accident which injures another, a civil claim can be brought under the laws of negligence ((A concise History of the common law: Theadore F.T Plucknett p. 44)).

In order for negligence to be established the following elements must be present:

  • A duty of care
  • This duty of care must have been breached
  • The breach must have caused injury to another

In civil law, an individual must take personal action to start the process; the state will not do this for you. You can hire an attorney to pursue the action at your expense. For example, you engage a contractor to build an extension on your house, but he does not complete the job. You might have to sue the contractor for breach of contract. If so, you must take the action against the contractor because this is a private matter between you and the contractor. The state or the police will not get involved ((Social legislation And crime: Prafullah Padhy)). Civil law relates to the relationships of contract and exchange between private parties (individuals, businesses, or individuals and businesses), such as marriage, divorce, buying and selling property, contracts, and warranties, and so on. Rather than being tried in a criminal court and a criminal conviction and sentence being imposed, civil law cases are litigated in civil courts as lawsuits, and the end result is normally financial compensation. Civil law encompasses all law that is not criminal and is divided into two branches: tort law and contract law ((The Differences between Criminal and Civil Law: Bruce Cantrell, CISSP 79103)).

Tort Law

Torts are civil wrongs recognized by law as grounds for a lawsuit. These wrongs result in an injury or harm constituting the basis for a claim by the injured party. Although some torts are also crimes punishable with imprisonment, the primary aim of tort law is to provide relief for the damages incurred and serve as a deterrent to others committing the same offense. The injured person can sue for an injunction to prevent the continuation of the harmful conduct or for monetary damages. Among the types of damages the injured party might recover are loss of earnings capacity, pain and suffering, and reasonable medical expenses. They include both present and future expected losses. Tort law is state law created through judges (common law) and by legislatures (statutory law). Specific torts include trespass, assault, battery, negligence, products liability, and intentional infliction of emotional distress Torts fall into three general categories: negligent torts (e.g., causing an accident by failing to obey traffic rules); intentional torts (e.g., intentionally hitting a person); and strict liability torts (e.g., liability for making and selling defective products). Negligent torts occur when the defendant’s actions are unreasonably unsafe. Intentional torts are those wrongs that the defendant knew or should have known would occur through his actions or inactions. Strict liability wrongs do not depend on the degree of carefulness by the defendant but are established when a particular action causes damage ((“The Crime/Tort Distinction: Legal Doctrine and Normative Perspectives”, Widener Law Journal 17 (2008): pp. 719-732.)).

Contract Law

Contracts are promises that the law will enforce. The law provides remedies if a promise is breached or recognizes the performance of a promise as a duty. Contracts arise when a duty does or might come into existence because of a promise made by one of the parties. To be legally binding as a contract, a promise must be exchanged for adequate consideration. Adequate consideration is a benefit or detriment that a party receives that reasonably and fairly induces them to make the promise/contract. Contracts are mainly governed by state statutory and common (judge-made) law and private law. Private law principally includes the terms of the agreement between the parties who are exchanging promises. This private law might override many of the rules otherwise established by state law. Statutory law might require some contracts be put in writing and executed with particular formalities. Otherwise, the parties might enter into a binding agreement without signing a formal written document ((A concise History of the common law: Theadore F.T Plucknett)).


Civil law is about private disputes between individuals or between individuals and organizations. Civil matters include areas such as contract law, family law, tort law, property law, and labor law. The person suing for a wrong has the burden of proving his case on a “balance of probabilities.” This means that a judge or jury must believe his story and evidence more than the defendant’s version. They do not need to be convinced beyond a reasonable doubt. One or both parties can be represented by an attorney.

Types of Activities

Civil disputes usually involve some loss or injury to one party or his property. Unlike criminal law; however, civil law is primarily involved with compensating victims. If a civil action is successful, the defendant will be responsible for the wrongful action. Although a defendant in a criminal case might be found guilty or not guilty, a defendant in a civil case is said to be liable or not liable for damages. Civil law offenses range from a breach of contract or warranty, the unlawful taking of property, invasions of privacy, negligence, or intentional and unintentional infliction of physical injury or emotional distress (personal injury) to severe rights violations such as gross negligence, medical malpractice, and wrongful death.

In addition, civil law addresses the following:

  • Property—Boundary disputes, trespass
  • Work-related disputes—Unfair dismissal, personal injury
  • Defamation of character
  • Consumer disputes—Faulty goods, trades-description offenses
  • Copyright or intellectual property disputes

Burden of Proof

Plaintiffs in a civil lawsuit need to show only by the weight or preponderance of the evidence that a defendant is 51% or more liable (responsible) for the damages. This is a lower burden of proof than in criminal law. The standard is what a reasonable and prudent man would have done. The burden of proof begins with the plaintiff, and then the burden switches to the defendant to rebut the plaintiff’s evidence.

What researcher concerned with is whether this distinction between public wrongs and private wrongs can justifiably explain the distinction between criminal law on the one hand, and torts and contracts as civil laws on the other. Let us be clear though on the distinction that is to be justifiably explained here. Of course, there are many ways to approach the distinction between criminal law and civil law here, as they are found in our common law systems ((Georgetown Law Journal 85(4) (1997): pp.775-819; for one that is in terms of responsibility, see Peter Cane, Responsibility in Law and Morality (Oxford, Oregon: Hart Publishing, 2002) pp. 50-51.)). Criminal law is exemplified by its ‘criminal’ process, whereby the state, rather than the victim, is principally in charge of the legal process. As Duff and Marshall explain, “A ‘criminal’ model puts the community (the state) in charge. The case is investigated by the police; the charge is brought by Regina, the People or the State; whether it is brought, and how far it proceeds, is up to the prosecuting authority; it is not for the victim to decide whether any decision it produces is enforced ((“The Crime/Tort Distinction: Legal Doctrine and Normative Perspectives”, Widener Law Journal 17 (2008): pp. 719-732.)).” On the other hand, civil laws are exemplified by the ‘civil’ process, whereby it is the victim (or plaintiff), rather than the state, that is principally in charge of the legal process.

There are however, certain wrongs that fulfill the criterion for both civil and criminal wrong. In these situations the distinction between the two wrongs can be slightly blurred. They can be called both as a civil wrong as well as a criminal wrong. So there can be criminal as well as legal action for a single wrong. Some examples to these are assault, defamation, negligence, nuisance, reckless driving etc.

  • If a person punch another person and there’s no physical injury, it will be considered as a civil wrong, though if a person beats another person and cause him grave injuries, it will be called a criminal wrong.
  • If by an individual’s negligence, another individual gets minor injuries it will be called a civil wrong. While if one’s negligence causes grave injuries to another individual, he has committed a criminal wrong.


In criminal wrongs, wrongdoer is punished by the state. Mostly it consists of corporeal punishment against the accused. But in some exceptional cases as provided U/S 357, Cr. PC 1973, a criminal court may also direct the accused to pay compensation to the aggrieved parties in suitable cases. Similarly, in civil law also, detention may be made out as in case of execution of decree under the Civil Procedure Code. As for example, if a person disobeys an injunction of the court, he may be punished with imprisonment in civil proceedings.