Criminal Law Principles and Theories

Lecture 1 and 2: Studying International Criminal Law

• It is a dialogue between different legal systems, seeking common foundations across diverse cultures.
• Italian criminal law exemplifies how national laws can be influenced by international systems like the EU or the European Court of Human Rights.

How Human Rights Affect Criminal Law

• Committing a crime directly violates human rights.
• Incorrectly using criminal law can also violate human rights.

Defining Crime

• A crime is an action or omission punishable by law.
• Punishment is a key consequence, differentiating crime from compensation in civil matters like divorce.
• Sentencing involves potentially fining and compensating a victim.
• Punishment is the strongest tool of a community.

Types of Wrongdoing

• Public wrong: An offense against society's duty to prosecute and punish.
• Mala in se: Inherently immoral acts wrong everywhere.
• Mala quia prohibita: Regulatory offenses that are declared criminal by law.

Risk Society and Criminal Law

• Engaging in activities perceived as dangerous is accepted as essential to modern life.
• Society is composed of individuals with great freedom to act alone.
• The absence of strong social bodies increases vulnerability, leading to reliance on criminal law for protection.
• A shared need exists in society to use criminal law as a protective tool.

Criminal Law Populism

• It involves using criminal law as a political solution to polarizing problems.
• Shifting responsibility to the judicial system avoids difficult political decisions.
• Criminal law should be a last resort, as criminalization does not automatically solve social issues.

Lecture 3: Why We Punish

• Western criminal law stems from the enlightenment movement.
• This movement sought to secularize, humanize, and rationalize criminal law.
• Secularization separates criminal law from morals.
• Humanization ensures punishment respects individual dignity.
• Rationalization is to question why do we punish.

State and Individual Freedom

• The State should only limit freedom to protect other members of society.
• Criminal law should not paternalize or dictate personal choices without harm to others.
• The focus should be on the criminal act itself, regardless of the person.
• Questioning whether someone can be prosecuted for merely existing.

Theories of Punishment

• Retributivism: A backward-looking theory focused on moral culpability; punishment fits the crime, with intent being a factor.
• Utilitarianism: A forward-looking theory grounded in the social contract, punishing only to protect society and prevent future harm.

Retributivism in Detail

• One receives no more and no less than is deserved, with proportionate suffering.
• It is morally wrong to intentionally punish the innocent or disproportionately punish a wrongdoer.
• The Lex Talionis: An eye for an eye, punishment restores violated rules that maintain social order.

Utilitarianism in Detail

• State sovereignty is the sum of individual freedoms relinquished for security.
• The right to punish must be limited to what is absolutely necessary.
• Capital punishment is considered unnecessary and not useful.
• Exceptions and circumstances exist where punishment may not be necessary.

The Focus of Punishment

• Focuses on the perpetrator and not the act.
• Possible unlimited extension to punishment based on social danger, aiming to prevent future crimes.
• Evaluation is needed to determine if punishment is, or is not.

Types of Prevention

• Negative General Prevention: Deterrence through fear of consequences, necessitating clear legislation.
• Positive General Prevention: Cultural orientation, requiring belief that certain actions are morally wrong.
• Special Prevention: Refers to the perpetrator and not the crime.

Special Prevention Subtypes

• Positive Special Prevention: Rehabilitation to re-educate and re-integrate the criminal.
• Negative Special Prevention: Incarceration, with some countries focused on retribution.

Legal Goods

• A socially relevant interest justifies criminalizing an action.
• Acts capable of endangering socially relevant interests excuse the use of criminal law.
• In common law, this translates to the harm principle.
• Criminal law protects the rights of the accused and limits State punitive powers.
• The evolution of punishment is linked to the evolution of sovereignty.

Transnational Criminal Law vs. International Criminal Law

• Transnational: A transboundary effect that affects multiple states.
• International: Crimes so serious they are seen as a global problem, regardless of jurisdiction.

Lecture 4: General Principles of Criminal Law (Slide 26), Due Process

• Principle of Accountability: No one is held accountable for an action they did not commit or participate in.
• Principle of Legality: No one can be convicted without a law defining the offense.
• Legal Certainty: Law should be clear and accessible with common law and general legislation.

Other Principles

• Prohibition of Analogy: Limits judicial interpretation, restricting criminalization to acts directly defined in law.
• Non-Retroactivity: Laws cannot punish actions that were legal when committed.
• Statutory Criminal Law: In civil law systems, only laws are a criminal source.

Principle of Individual Criminal Responsibility

• No one is held responsible for actions they haven't performed or participated in.
• There must be an act, focusing on the action not the perpetrator.
• Responsibility is limited to individuals, excluding collective responsibility.
• There is no responsibility without culpability.

Other Principles

• Principle of Legality: No crime, no punishment without law.
• Legal certainty (law should be clear and accessible).
• Prohibition of analogy (limit to judicial interpretation).
• Non-retroactivity (law should pre-exist the act).
• Statutory criminal law is the only source.
• Criminal law as an extrema ratio (last resort): Criminalization only for serious conduct when other means are insufficient.

Principle of Proportionality

• Criminalization: Conducts deserving criminal punishment must still be proportionate.
• Punishment: The punishment should fit the crime with minimum harm inflicted.
• Procedural Law (Due Process): Involves judicial guarantees for the accused such as:
  • Presumption of Innocence: Innocent until proven guilty.
  • Right to Remain Silent (Privilege Against Self-Incrimination): Nobody can be compelled to testify against themselves.
  • Standard of Proof: There's proof beyond any reasonable doubt

General and Special Parts of Criminal Structure

• General Part: Actus reus (the physical act), mens rea (the mental element).
• Special Part: Specific offenses like homicide, rape, theft, etc.

Actus Reus

• The Act: Must be a voluntary action that can be identified with an associated failure to act.
• Some crimes require the act as a necessary condition of the result.

Mens Rea

• The Mens Rea: The mental element of the crime or the defendant's mental state.
• Degrees of mens rea: Intention, recklessness, negligence, or strict liability.

Defenses

• Defenses: The defendant may escape conviction by proving the existence of a defense.
• Justifications: objective grounds that exclude the wrongfulness of the act.

Legal families

• A simplification of legal systems that results in an "ideal type"
• When it comes to criminal law, the differences are becoming less and less important.

Lecture 5: The Internalization of Criminal Law

• Internalization of Criminal Law: Criminal law extends beyond domestic boundaries to include international laws.
• Multi-level interactions of ICL, focus in ICL and ECL.
• Transformation of CL both nationally and supranationally.

Transformation of Criminal Law

• Transformation of CL both nationally and supranationally.
• The dimension of criminal Law from a pyramid to a net and how that has moved us from Monism to Pluralism
• There is now a shift between the State being at the top of the pyramid mode to a network. _ Globalization and internationalization interactions have replaced subordination and linear hierarchy. Statutory interactions, where a legal provision refers to another legal provision. One court may quote a reasoning from a court at a different level, a judicial decision makes reference to another precedent. horizontal/vertical Interactions levels

###Lecture 6: Different Frameworks Of International Law

• European framework: Criminal law isnt a competence of the EU
• If a judge sees a contrast between a national law and an EU law, they're forced to apply EU law → this is the primacy of EU law. -The EU has a power to introduce minimum norms to reference some relevant transnational crimes -The European Prosecutor, a body with a very limited task → dealing with financial crimes against the EU.

###Lecture 7: Globalization/Europeanisation and the Criminal Law System

• From Monism to Pluralism: Law is much more than State law.
• We're going from fragmentation to harmonization: we reach a common background where we still have differences at a national level
• Making sure different layers of justice (like local, global, and regional systems) work together is a big challenge

###Lecture 8: The Beginnings of Criminal Law

• Attempts to persecute Kaiser Wilhelm II for offenses against international morality
• Establishment of establised principles still valid today. Individual criminal responsibility for international crimes
• Timeline after WWll and then another after the civil war/code Nuremberg trials, after world war attempt to move toward international morality

###Lecture 9: Disillusion, Structure of the ICJ Disillusion Most powerful States aren't MS of the ICC: USA, Israel, India, Russia, China

###Structure of the International Criminal Court Organization and parties: The ICC has a system that includes The assembely of State Parties, Judges, and jurisdictions Ratione Material Temporis Ratiome Loci/Personae

###Lecture 10: Criminal Law and Non-Retroactivity - How to Deal With Nazi Crimes? Positive means the legitimation of law is based on a highest source, a fundamental norm that legitimized

• Positivism Vs After WW||

###Lecture 11: Transnational Justice, Retributive/Restorative Justice, Criminal Prosecution and Amnesty The scope of a transnational Justice

• Depends on the notion of Justice: - Retributive Justice - Restorative Justice aims To do
• Amnestys and the issues of not knowing how to deal with different legal systems
• Criminals Commited many years ago

###Other

• Non judicial Bodies
• Key Terms like Cultural and structureal
• When to use community justice and what to know

Test your knowledge of criminal law principles, including criminal law populism, justifications for state limitations on individual freedom, and theories of punishment. Explore concepts like 'actus reus', proportionality, and the impact of enlightenment thought on criminal law.