criminal law
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criminal law, the body of law that defines criminal offenses, regulates the apprehension, charging, and trial of suspected persons, and fixes penalties and modes of treatment applicable to convicted offenders.
Criminal law is only one of the devices by which organized societies protect the security of individual interests and ensure the survival of the group. There are, in addition, the standards of conduct instilled by family, school, and religion; the rules of the office and factory; the regulations of civil life enforced by ordinary police powers; and the sanctions available through tort actions. The distinction between criminal law and tort law is difficult to draw with real precision, but in general one may say that a tort is a private injury whereas a crime is conceived as an offense against the public, although the actual victim may be an individual.
This article treats the principles of criminal law. For treatment of the law of criminal procedure, see procedural law: Criminal procedure.
Principles of criminal law
The traditional approach to criminal law has been that a crime is an act that is morally wrong. The purpose of criminal sanctions was to make the offender give retribution for harm done and expiate his moral guilt; punishment was to be meted out in proportion to the guilt of the accused. In modern times more rationalistic and pragmatic views have predominated. Writers of the Enlightenment such as Cesare Beccaria in Italy, Montesquieu and Voltaire in France, Jeremy Bentham in Britain, and P.J.A. von Feuerbach in Germany considered the main purpose of criminal law to be the prevention of crime. With the development of the social sciences, there arose new concepts, such as those of the protection of the public and the reform of the offender. Such a purpose can be seen in the German criminal code of 1998, which admonished the courts that the “effects which the punishment will be expected to have on the perpetrator’s future life in society shall be considered.” In the United States a Model Penal Code proposed by the American Law Institute in 1962 states that an objective of criminal law should be “to give fair warning of the nature of the conduct declared to constitute an offense” and “to promote the correction and rehabilitation of offenders.” Since that time there has been renewed interest in the concept of general prevention, including both the deterrence of possible offenders and the stabilization and strengthening of social norms.
Common law and code law
Important differences exist between the criminal law of most English-speaking countries and that of other countries. The criminal law of England and the United States derives from the traditional English common law of crimes and has its origins in the judicial decisions embodied in reports of decided cases. England has consistently rejected all efforts toward comprehensive legislative codification of its criminal law; even now there is no statutory definition of murder in English law. Some Commonwealth countries, however, notably India, have enacted criminal codes that are based on the English common law of crimes.
The criminal law of the United States, derived from the English common law, has been adapted in some respects to American conditions. In the majority of the U.S. states, the common law of crimes has been repealed by legislation. The effect of such actions is that no person may be tried for any offense that is not specified in the statutory law of the state. But even in these states the common-law principles continue to exert influence, because the criminal statutes are often simply codifications of the common law, and their provisions are interpreted by reference to the common law. In the remaining states prosecutions for common-law offenses not specified in statutes do sometimes occur. In a few states and in the federal criminal code, the so-called penal, or criminal, codes are simply collections of individual provisions with little effort made to relate the parts to the whole or to define or implement any theory of control by penal measures.
In western Europe the criminal law of modern times has emerged from various codifications. By far the most important were the two Napoleonic codes, the Code d’instruction criminelle of 1808 and the Code pénal of 1810. The latter constituted the leading model for European criminal legislation throughout the first half of the 19th century, after which, although its influence in Europe waned, it continued to play an important role in the legislation of certain Latin American and Middle Eastern countries. The German codes of 1871 (penal code) and 1877 (procedure) provided the models for other European countries and have had significant influence in Japan and South Korea, although after World War II the U.S. laws of criminal procedure were the predominant influence in the latter countries. The Italian codes of 1930 represent one of the most technically developed legislative efforts in the modern period. English criminal law has strongly influenced the law of Israel and that of the English-speaking African states. French criminal law has predominated in the French-speaking African states. Italian criminal law and theory have been influential in Latin America.
Since the mid-20th century the movement for codification and law reform has made considerable progress everywhere. The American Law Institute’s Model Penal Code stimulated a thorough reexamination of both federal and state criminal law, and new codes were enacted in most of the states. England enacted several important reform laws (including those on theft, sexual offenses, and homicide), as well as modern legislation on imprisonment, probation, suspended sentences, and community service. Sweden enacted a new, strongly progressive penal code in 1962. In Germany a criminal code was adopted in 1998 following the reunification of East and West Germany. In 1975 a new criminal code came into force in Austria. New criminal codes were also published in Portugal (1982) and Brazil (1984). France enacted important reform laws in 1958, 1970, 1975, and 1982, as did Italy in 1981 and Spain in 1983. Other reforms have been under way in Finland, the Netherlands, Belgium, Switzerland, and Japan. The republics formerly under the control of the Soviet Union also have actively revised their criminal codes, including Hungary (1961), Bulgaria (1968), Uzbekistan (1994), Russia (1996), Poland (1997), Kazakhstan (1997), Ukraine (2001), and Romania (2004).
Comparisons between the systems of penal law developed in the western European countries, and those having their historical origins in the English common law must be stated cautiously. Substantial variations exist even among the nations that adhere generally to the Anglo-American system or to the law derived from the French, Italian, and German codes. In many respects, however, the similarities of the criminal law in all states are more important than the differences. Certain forms of behaviour are everywhere condemned by law. In matters of mitigation and justification, the continental law tends to be more explicit and articulate than the Anglo-American law, although modern legislation in countries adhering to the latter has reduced these differences. Contrasts can be drawn between the procedures of the two systems, yet even here there is a common effort to provide fair proceedings for the accused and protection for basic social interests.
Substantive criminal law
Substantive criminal law is composed of the following elements: the definitions of the types of offenses that are held to be punishable; the classification of crimes (as, for example, felonies and misdemeanours in the United States, or crime, délit, and contravention in continental law); the principles and doctrines applied to the judgment of crime that qualify the provisions of criminal legislation (such as self-defense, necessity, insanity, and so forth); and principles determining national jurisdiction over crimes with an international aspect (crimes committed by foreigners, by nationals abroad, or on ships and aircraft outside the national territory and waters).
The definition of criminal conduct
Legality
The principle of legality is recognized in almost all legal systems throughout the world as the keystone of the criminal law. It is employed in four senses. The first is that there can be no crime without a rule of law; thus, immoral or antisocial conduct not forbidden and punished by law is not criminal. The law may be customary, as in some common-law countries; in most countries, however, the only source of criminal law is a statute (nullum crimen sine lege, “no crime without a law”).
Second, the principle of legality directs that criminal statutes be interpreted strictly and that they not be applied by analogical extension. If a criminal statute is ambiguous in its meaning or application, it is often given a narrow interpretation favourable to the accused. This does not mean that the law must be interpreted literally if to do so would defeat the clear purpose of the statute. The Model Penal Code incorporates a provision that was enacted in some U.S. state laws. The code recommends that its provisions be construed “according to the fair import of their terms,” which comes closer to the European practice.
Third, the principle of legality forbids the application of the law retroactively. In order that a person may be convicted, a law must have been in effect at the time the act was committed. This aspect of the principle is embodied in the ex post facto provisions of the U.S. Constitution and such international treaties as the European Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 1950) and the International Covenant on Civil and Political Rights (entered into force 1976). It is also embodied in the Rome Statute creating the International Criminal Court (ICC; ratified 2002).
Fourth, the language of criminal statutes must be as clear and unambiguous as possible in order to provide fair warning to the potential lawbreaker. In some countries statutes may even be considered inapplicable if they are vague.
Protection against double jeopardy
Legal systems generally include some restriction against prosecuting a person more than once for the same offense. In Anglo-American law the most difficult problems of double jeopardy involve the question of whether the second prosecution is for the “same” or a “different” offense. It is held that acquittal or conviction of an offense prohibits subsequent prosecution of a lesser offense that was included in the first. According to the U.S. Supreme Court in Blockburger v. United States, 284 U.S. 299, 304 (1932), the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact that the other does not. In continental European law, on the other hand, the question is whether the second prosecution concerns the same “material fact” or “historical event,” and the state cannot subject a person to a second trial for any offense arising out of the same factual situation.
A problem under the federal system of the United States is whether an offender may be prosecuted under both state and federal law for the same conduct (the specific offenses being different). A number of state laws have prohibited state prosecutions after acquittals or convictions in a federal court or in the court of another state for offenses involving the same conduct. However, the U.S. Supreme Court has held that such multiple prosecutions by separate sovereigns are not prohibited by the double jeopardy clause of the Fifth Amendment to the U.S. Constitution.
Statutes of limitation
All systems of law have statutes restricting the time within which legal proceedings may be brought. The periods prescribed may vary according to the seriousness of the offense. In German law, for example, the periods range from 3 years for minor offenses to 30 years for crimes involving a life sentence. General statutes limiting the times within which prosecutions for crimes must be begun are common in continental Europe and the United States. In England there is no general statute of limitations applicable to criminal actions, although statutes for specific crimes frequently have included time limits.
In many countries there are no statutes of limitations for particularly heinous offenses, including capital felonies in the United States and genocide and murder in Germany. In 1968 the UN General Assembly adopted a Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes Against Humanity. Similarly, there is no statute of limitations for prosecutions of the offenses of genocide, crimes against humanity, and war crimes under the Rome Statute creating the ICC.
Requirements of jurisdiction
The jurisdiction of a court refers to its capacity to take valid legal action. All governments claim territorial jurisdiction over crimes committed wholly or partly within their territory, including flag vessels (i.e., vessels registered in that country) and embassies. The Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft (1963) and the Hague Convention for the Suppression of Unlawful Seizure of Aircraft (1970) recognize that states have the right and even the duty of jurisdiction with respect to any crime committed upon aircraft registered in that state. Most nation-states also claim nationality jurisdiction over certain crimes committed by their nationals, even when they were committed in other countries. A third jurisdictional basis is known as protective-principal jurisdiction, which gives criminal jurisdiction over offenses committed against national interests. For example, persons who forge currency of a country may commit a crime against that country even if the forgeries are executed beyond the borders by persons who are not citizens. A fourth jurisdictional basis of late 20th-century origin and with less universal acceptance is similar to the third and is known as passive-personality jurisdiction. In certain circumstances, violent crimes against nationals may give rise to jurisdiction even if the crimes occur beyond the borders and the offenders are not nationals. For example, when in 1985 the United States attempted to arrest the hijackers on the Italian cruise ship MS Achille Lauro because of the brutal shipboard murder of American citizen Leon Klinghoffer, the claimed jurisdiction of the U.S. over the hijackers may have been based on passive personality. Finally, international law recognizes that there are universal jurisdiction crimes that may be tried by any country, regardless of where the crimes occurred or the nationality of the offenders or the victims. A long-accepted example of universal crimes giving jurisdiction to all national courts is piracy on the high seas; all countries have jurisdiction to try pirates. In the 20th century, war crimes, crimes against humanity, genocide, and torture were added to the list of crimes giving rise to universal jurisdiction.
Most legal systems do not exercise the full range of jurisdiction they might claim. In U.S. law, for example, Congress has passed statutes permitting prosecutions under all of the jurisdictional bases listed above. However, the jurisdiction of the federal courts is generally limited to acts occurring in whole or in part within the boundaries of the United States unless extraterritorial jurisdiction is expressly granted or implied by the statute creating the crime. The U.S. Supreme Court held in U.S. v. Bowman (1922) that most crimes enacted by Congress are to be read as covering only acts committed in the United States. However, this is not true of “criminal statutes which are, as a class, not logically dependent on their locality for the government’s jurisdiction.” U.S. states, while they may have some justifications for asserting extraterritorial jurisdiction, almost exclusively limit criminal jurisdiction to the territorial basis. However, the crime need not be completed within the state. Where, for example, an offender fires a bullet across a state border, striking a victim in a second state, who dies in a third, each of the three states may have territorial jurisdiction to try the offender.
Nationals who commit crimes in foreign countries may be extradited but only if required or authorized by treaty with the country concerned. The constitutions and laws of some countries prohibit their nationals from being extradited to other countries. For example, motion-picture director Roman Polanski fled to France in 1978 to avoid being imprisoned for child sexual assault in California. Because he held dual French and Polish citizenship, he avoided extradition.