Global Law Criminal Law (2018-2019, semester 2)
Lecture 1: What is criminal law?
Substantive criminal law = field of law that determines which facts are criminal
Protects legal interests such as life
Also used as a form of governance to regulate minor wrongs
Mala in se v mala prohibita
Procedural criminal law = formal rules to enforce substantive criminal law
Contains rules that regulate: investigation (searches, witnesses interrogations), trial,
appeal
Who makes criminal law?
State/federal legislator
Lower legislators (municipalities)
Supranational intstitutions (EU)
Criminal courts (common law)
Main sources of criminal law
Criminal codes
Acts of parliament/congress
Case law
Doctrine
Criminal law is an ultimate remedy/last resort -- and must be proportionate
Criminal courts
a. lower courts
b. courts of appeal
c. supreme court
Functions of criminal law
Declaratory = values of society
Preventative = punishment may keep people from committing crime
Censuring = signalling certain behavior as wrong
Why punish
Retributive theory
- proportionality
- you committed a wrong, state can wrong you by punishing you
Utilitarian theory
- focus on future
- cannot inflict harm while in prison
- rehabilitation
Mixed theory: combination of deterrence and rehabilitation
Conditions for criminal liability
1. act (actus reus)
- certain age (criminal capacity)
- willed voluntary act
1
,- actus reus = legal definition of a criminal offense in a certain country
- omission may count when there is a duty to act
2. causation
- conditio sine qua non
- proximate cause
- adequation (foreseeable)
What factor is more important in contributing to the crime? More factors
but for- test
3. fault (mens rea)
= intentionally
4. wrongdoing (no justification)
e.g. necessity or self-defense
still harmful, but no longer considered wrong
5. blameworthiness (no excuse)
e.g. duress or involuntary intoxication
if there is a legal excuse, defendant is no longer blameworthy
Scope of criminal liability
- justification (act is not wrongful)
- excuse (actor not culpable)
Broadening criminal liability
- inchoate offenses (=just begun and so not fully formed or developed; rudimentary)
- complicity
Jurisdiction
- nationality, territoriality, universal
- territorial jurisdiction has priority --> sovereignty (includes vessels, airplanes ships)
Requirement of double criminality (is a crime in both jurisdictions)
If something is not a crime in a country, they cannot claim jurisdiction
2
, Lecture 2: Criminalization and decriminalization
Criteria act must be harmful AND wrong
POLITICS
Why?
- principle of legality
- criminal law is the most coercive state instrument
THEORIES OF CRIMINALIZATION
Utilitarian
= for the greater good
Law & economics
= cost/benefit analysis
Legal moralism
= criminalization of immoral conduct
HARM
- Prevent harm to others
o Individual autonomy
o Welfare, part of a community
- BALANCING ANALYSIS* : greater the gravity and likelihood of harm the strong the case in favour of
criminalisation (like terrorism), the more valuable conduct is , or the more prohibition woud limit
liberty the stonger the case against criminalisation ( so like since privacy violation is als harm)
Public wrongfulness : legal moralism theory
- a crime against one as a crime against all
- Can be controversial
comparison between criminal and civil law: criminal is only about PUBLIC wrongs so we get that civil
law is going to be more broad than criminal law
No objective criteria: criminalisation is a balancing act
- Harm and wrong are threshold criteria
Secondary (or moderating) criteria:
• Proportionality
- retrospective: punishment should fit the crime
- prospective response should fit the act (warrants a criminal law response?)
--> standard harm analysis*
• Subsidiarity
- criminal law last resort --> alternatives tort law, tax law
• Effectiveness
– Prosecutability
– Chance of detection & capacity of criminal justice system
– Deterrent effect
3
Lecture 1: What is criminal law?
Substantive criminal law = field of law that determines which facts are criminal
Protects legal interests such as life
Also used as a form of governance to regulate minor wrongs
Mala in se v mala prohibita
Procedural criminal law = formal rules to enforce substantive criminal law
Contains rules that regulate: investigation (searches, witnesses interrogations), trial,
appeal
Who makes criminal law?
State/federal legislator
Lower legislators (municipalities)
Supranational intstitutions (EU)
Criminal courts (common law)
Main sources of criminal law
Criminal codes
Acts of parliament/congress
Case law
Doctrine
Criminal law is an ultimate remedy/last resort -- and must be proportionate
Criminal courts
a. lower courts
b. courts of appeal
c. supreme court
Functions of criminal law
Declaratory = values of society
Preventative = punishment may keep people from committing crime
Censuring = signalling certain behavior as wrong
Why punish
Retributive theory
- proportionality
- you committed a wrong, state can wrong you by punishing you
Utilitarian theory
- focus on future
- cannot inflict harm while in prison
- rehabilitation
Mixed theory: combination of deterrence and rehabilitation
Conditions for criminal liability
1. act (actus reus)
- certain age (criminal capacity)
- willed voluntary act
1
,- actus reus = legal definition of a criminal offense in a certain country
- omission may count when there is a duty to act
2. causation
- conditio sine qua non
- proximate cause
- adequation (foreseeable)
What factor is more important in contributing to the crime? More factors
but for- test
3. fault (mens rea)
= intentionally
4. wrongdoing (no justification)
e.g. necessity or self-defense
still harmful, but no longer considered wrong
5. blameworthiness (no excuse)
e.g. duress or involuntary intoxication
if there is a legal excuse, defendant is no longer blameworthy
Scope of criminal liability
- justification (act is not wrongful)
- excuse (actor not culpable)
Broadening criminal liability
- inchoate offenses (=just begun and so not fully formed or developed; rudimentary)
- complicity
Jurisdiction
- nationality, territoriality, universal
- territorial jurisdiction has priority --> sovereignty (includes vessels, airplanes ships)
Requirement of double criminality (is a crime in both jurisdictions)
If something is not a crime in a country, they cannot claim jurisdiction
2
, Lecture 2: Criminalization and decriminalization
Criteria act must be harmful AND wrong
POLITICS
Why?
- principle of legality
- criminal law is the most coercive state instrument
THEORIES OF CRIMINALIZATION
Utilitarian
= for the greater good
Law & economics
= cost/benefit analysis
Legal moralism
= criminalization of immoral conduct
HARM
- Prevent harm to others
o Individual autonomy
o Welfare, part of a community
- BALANCING ANALYSIS* : greater the gravity and likelihood of harm the strong the case in favour of
criminalisation (like terrorism), the more valuable conduct is , or the more prohibition woud limit
liberty the stonger the case against criminalisation ( so like since privacy violation is als harm)
Public wrongfulness : legal moralism theory
- a crime against one as a crime against all
- Can be controversial
comparison between criminal and civil law: criminal is only about PUBLIC wrongs so we get that civil
law is going to be more broad than criminal law
No objective criteria: criminalisation is a balancing act
- Harm and wrong are threshold criteria
Secondary (or moderating) criteria:
• Proportionality
- retrospective: punishment should fit the crime
- prospective response should fit the act (warrants a criminal law response?)
--> standard harm analysis*
• Subsidiarity
- criminal law last resort --> alternatives tort law, tax law
• Effectiveness
– Prosecutability
– Chance of detection & capacity of criminal justice system
– Deterrent effect
3
