Introduction to Criminal Law

Criminal Law - Week 1: Introduction

• Criminal law is a complex area of law
• Understanding its principles is critical

Aims of Introduction to Criminal Law

• Define substantive and procedural criminal law
• Identify the most important sources of criminal law
• Explain the societal need for criminal law
• Outline the five main conditions for establishing criminal liability
• Understand and apply heads of jurisdiction (territoriality, extraterritoriality, passive nationality, active nationality)
• Comprehend the concept of double criminality

Retributive Conceptions

• Focuses on punishing those morally guilty of wrongdoing
• Punishment is justified by desert, meaning wrongdoers should be punished proportionally to the harm caused
• Desert, or retribution, prioritizes moral blameworthiness of the act itself
• It emphasizes the crime rather than the criminal
• Type and intensity of confinement is based on the past act, not the future criminality of the offender
• Punishment is inherently just, regardless of consequences
• Someone should be punished simply because a crime has been committed (quia peccatum)
• Punishment should focus on the past act, irrespective of the goal
• Proportionality is key, where severe crimes receive harsher penalties, and minor offenses, lighter ones
• Punishment is proportional to the seriousness of the act and the offender's culpability
• Focuses on moral accountability instead of future benefits (deterrence or rehabilitation).
• Criticisms include the potential vengeful nature of retributivism.
• It could overlook the broader social impact of punishment
• Focuses on past acts without consideration for future benefits or prevention of harm

Utilitarian Consequentialist Conceptions

• Punishment should only be for those whose punishment leads to greater overall societal good.
• There is no emphasis on desert, moral guilt, or culpability
• The purpose of punishment is to achieve future benefits.
• Deterrence aims to prevent crimes by setting an example
• Rehabilitation aims at reforming offenders into law-abiding citizens
• Incapacitation protects society by removing dangerous individuals
• Severity is determined by effectiveness in achieving societal benefits
• Punishment shouldn't exceed what's necessary to deter, rehabilitate, or incapacitate
• It is based on individual risk to society and crime seriousness
• Criticisms include justifying punishment of innocent people if it achieves overall good
• Individual rights may be undermined by reducing people to means for societal goals

Hybrid Conceptions

• There is a combination of desert (retributive) and social benefit (utilitarian) elements
• Offenders need to deserve punishment
• Form and severity should consider societal impact
• Punishment balances justice and utility
• Moral guilt is acknowledged while deterring crime and rehabilitating offenders
• Proportionality remains key, but punishment may be tailored to societal needs
• Rehabilitation is prioritized over harsh penalties for minor crimes
• Criticisms involve the difficulty in balancing competing principles of justice and utility
• Moral clarity of punishment risks dilution by adding pragmatic considerations

Enlightenment Ideas on Punishment

• Marked a shift towards rationality, humanism, and justice reform in punishment
• Reason over tradition is key
• Punishment should be guided by logic and evidence, not arbitrary customs or religious dogma
• There is emphasis on humane treatment of offenders
• Cruel/unusual punishments should be rejected
• Cesare Beccaria argued for swift, certain, and proportionate punishments
• Excessive cruelty is unjust and ineffective
• Focus should shift from retribution to deterrence
• Punishment is meant to prevent crime, not simply to avenge it
• Offenders are seen as rational agents capable of improvement
• They deserve opportunities for rehabilitation
• Punishment should be applied fairly, without regard to status, wealth, or power
• Beccaria advocated abolishing the death penalty and torture, with an emphasis on proportionality and humane treatment
• Jeremy Bentham pioneered utilitarian theories of punishment

Post-World War II Shifts in Punishment

• The aftermath of World War II profoundly influenced how punishment was viewed and administered
• This was due to heightened awareness of human rights and atrocities committed during the war
• Global efforts emphasized individual dignity and worth like the Universal Declaration of Human Rights
• Harsh, arbitrary punishments were increasingly rejected as human rights violations
• Post-war justice rejected practices reminiscent of authoritarian regimes like torture and death camps
• There was a rise of anti-death-penalty movements, with a focus on more humane punishment approaches
• Emphasized reintegrating offenders into society, instead of harshly punishing them
• Systems like parole, probation, and restorative justice were developed
• Societal responsibility in addressing crime's root causes recognized (poverty, inequality, lack of education)
• The Nuremberg Trials set a precedent for holding individuals accountable for crimes against humanity
• The trials upheld the principle of fair trials

Criminal Law Forms

• Substantive criminal law dictates behavior and sets limits
• It also provides protection and prevention
• Criminal procedure law dictates how to processes crime and criminals
• It limits state power and emphasizes justice and fairness

Forms of Criminal Wrongdoing

• Mala in Se: Inherent wrongs that violate natural law or universal moral principles
• Mala in Se: Examples include murder, rape, assault, and robbery
• Mala Prohibita: Wrongs in law that are based on societal consensus or government regulation
• Mala Prohibita: Examples include parking in a no-parking zone or failing to file taxes

Criminalization vs. Punishment

• Criminalization involves a behavior made illegal through laws
• Criminalization restricts certain freedoms
• Punishment involves the penalty given for breaking a law

Functions of Criminalization

• Deters/protects people from committing crimes
• Provides the legal basis for punishment
• Communicates societal values and disapproves of attacking these values

Theories and Concepts of Punishment

• Retribution: Payment for actions
• Elimination: Removing someone from society to prevent harm
• Deterrence: Discouraging behavior by instilling doubt/fear
• Rehabilitation: Improving a person through punishment

Criminal Law Preconditions

• A law that prohibits the behavior
• Actus reus: Factual behavior with consequences
• Mens rea: Direct/indirect intent
• Causation: The perpetrator caused the consequence
• Wrongdoing: Harm without justification(self-defense)
• Blameworthiness: No excuse to exclude liability

Criminal Jurisdictions

• Territorial jurisdiction involves the power to prosecute crimes within a state’s borders.
• Extraterritorial jurisdiction involves a state's power outside its borders
• Nationality principle includes active and passive nationality (double criminality may be required)
• The universality principle also factors into jurisdiction