Week 1:
Legality principles:
- Art. 103 Germ. Const. / art. 1 Criminal Code – “An act can only be punished if its
criminality had been legally determined before the act was committed.”
- Art. 7 subs. 1 ECHR – “No one shall be held guilty of any criminal offence on account of
any act or omission which did not constitute a criminal offence under national or
international law at the time when it was committed. Nor shall a heavier penalty be
imposed than the one that was applicable at the time the criminal offence was
committed.”
Prohibition of retroactive effect (lex praevia)
- Prohibition of retroactive effect establishing punishment
- Prohibition of retroactive effect aggravating punishment
Exception: lex mitior-clause
- If the law effective at the time of the completion of the offence is changed before the
judgment, the most lenient law is to be applied
- Cancellation or restriction of a criminal provision
- Mitigation of the punishment
- New grounds of justification or excuse
Prohibition of vague laws (lex certa)
- Criminal statutes have to be sufficiently precise
Prohibition of vague laws (lex certa)
- This standard is difficult to obtain
- Vague terms cannot be avoided completely, for otherwise the legislator could not
do justice to the diversity of life, the change of conditions, and the particularities
of the respective case
Prohibition of analogy (lex stricta)
- The application of a rule to cases that are not covered any more by the statute’s
wording, but whose inclusion into the rule’s range of application is indicated by the sense
and purpose of the statute
Analogy or interpretation?
- Plain meaning of the statute
- Legislative history
- The system of the criminal law code
- Sense and purpose of the statute
Prohibition of customary laws (lex scripta)
- Courts should base criminal liability only on written statutes as opposed to customary
laws
- Usually in words
, - NB: Aggressive Animal Act: (repealed)
- If a dog looked similar to the picture of the pit bull terrier type depicted
here, such a dog fell under the prohibition
Justification of punishment
- What is punishment?
- It is assumed to be unpleasant for the recipient
- Infliction is intentional
- In response to breaking of the law
- Person punished has broken the law voluntarily
- It is the belief of the person who orders the punishment that settles the question
whether it is punishment
Retributivism
- Punishment is deserved
- Deontological
- Backward-looking
- Punishment is good
Utilitarianism
- Punishment is useful
- Consequentialistic
- Forward-looking
- Punishment is evi
Positive and negative retributivism
- Positive retributivism
- The guilty must be punished to the extent of their deserts
● Kant: “Even if a civil society were to be dissolved by the consent of all its members (e.g.,
if a people inhabiting an island decided to separate and disperse throughout the world),
the last murderer remaining in prison would first have to be executed, so that each has
done to him what his deeds deserve and blood guilt does not cling to the people for not
having insisted upon this punishment; for otherwise the people can be regarded as
collaborators in his public violation of justice.”
Positive and negative retributivism
- Positive retributivism: The guilty must be punished to the extent of their deserts
- Negative retributivism: The guilty may be punished to the extent of their deserts
EG.
- Assaultive retributivism: it is morally right to hate criminals – because the criminal has
harmed society, it is right for society to hurt him back
- Punishment as communication: punishment communicates to the criminal and society
that he has commited a wrong
Retributivism and proportionality
- Punishment should be proportional to the severity of the crime
- What is deserved punishment?
- Deserved punishment = r x H
- Responsibility (r): intentional?; negligent?; excuse?
, - Harm (H): death; rape; injury; theft; et
Utilitarianism:
- Utilitarianism aims to achieve the maximum amount of happiness in society by
prevention of crime
Means of crime prevention
- Individual deterrence
- General deterrence
- Moral influence (positive general deterrence)
- Rehabiliation
- Incapacitation
Utilitarianism and proportionality
- No moral objections to punishment which does not match the retributive deserts of the
offender
Utilitarianism and proportionality
- No moral objections to disproportional punishment
- However, in practice punishment is usually proportional:
- The greater the offence is, the greater reason there is for a severe punishment
- Disproportional punishment might lead to public outrage
- Parsimony principle (subsidiarity): a sanction may only be as severe as is
necessary to achieve prevention
Mixed theories
- Mens rea required (no absolute liability)
- Within the bounds of deserts, the amount of punishment is determined by utilitarian (and
retributive) principle
Substantive law:
Substantive law identifies which behaviours are allowed and prohibited in a given
society.
This law focuses on the definition (found in statute or common law) of the law broken (ie,
behaviour prohibited).
- In the criminal law context this includes (among other):
- theories of punishment
- what is a criminal offence?
- the availability of defences/excuses to the offending
Procedural law:
Procedural law focuses on how the substantive laws are to be administered and
enforced.
These laws outline the legal process to safeguard a person’s legal rights and ensure a
government is not over extending their permissible powers.
- In the criminal law context this includes (among other) rules concerning:
- criminal investigations
- criminal prosecutions
- criminal trials
Legality principles:
- Art. 103 Germ. Const. / art. 1 Criminal Code – “An act can only be punished if its
criminality had been legally determined before the act was committed.”
- Art. 7 subs. 1 ECHR – “No one shall be held guilty of any criminal offence on account of
any act or omission which did not constitute a criminal offence under national or
international law at the time when it was committed. Nor shall a heavier penalty be
imposed than the one that was applicable at the time the criminal offence was
committed.”
Prohibition of retroactive effect (lex praevia)
- Prohibition of retroactive effect establishing punishment
- Prohibition of retroactive effect aggravating punishment
Exception: lex mitior-clause
- If the law effective at the time of the completion of the offence is changed before the
judgment, the most lenient law is to be applied
- Cancellation or restriction of a criminal provision
- Mitigation of the punishment
- New grounds of justification or excuse
Prohibition of vague laws (lex certa)
- Criminal statutes have to be sufficiently precise
Prohibition of vague laws (lex certa)
- This standard is difficult to obtain
- Vague terms cannot be avoided completely, for otherwise the legislator could not
do justice to the diversity of life, the change of conditions, and the particularities
of the respective case
Prohibition of analogy (lex stricta)
- The application of a rule to cases that are not covered any more by the statute’s
wording, but whose inclusion into the rule’s range of application is indicated by the sense
and purpose of the statute
Analogy or interpretation?
- Plain meaning of the statute
- Legislative history
- The system of the criminal law code
- Sense and purpose of the statute
Prohibition of customary laws (lex scripta)
- Courts should base criminal liability only on written statutes as opposed to customary
laws
- Usually in words
, - NB: Aggressive Animal Act: (repealed)
- If a dog looked similar to the picture of the pit bull terrier type depicted
here, such a dog fell under the prohibition
Justification of punishment
- What is punishment?
- It is assumed to be unpleasant for the recipient
- Infliction is intentional
- In response to breaking of the law
- Person punished has broken the law voluntarily
- It is the belief of the person who orders the punishment that settles the question
whether it is punishment
Retributivism
- Punishment is deserved
- Deontological
- Backward-looking
- Punishment is good
Utilitarianism
- Punishment is useful
- Consequentialistic
- Forward-looking
- Punishment is evi
Positive and negative retributivism
- Positive retributivism
- The guilty must be punished to the extent of their deserts
● Kant: “Even if a civil society were to be dissolved by the consent of all its members (e.g.,
if a people inhabiting an island decided to separate and disperse throughout the world),
the last murderer remaining in prison would first have to be executed, so that each has
done to him what his deeds deserve and blood guilt does not cling to the people for not
having insisted upon this punishment; for otherwise the people can be regarded as
collaborators in his public violation of justice.”
Positive and negative retributivism
- Positive retributivism: The guilty must be punished to the extent of their deserts
- Negative retributivism: The guilty may be punished to the extent of their deserts
EG.
- Assaultive retributivism: it is morally right to hate criminals – because the criminal has
harmed society, it is right for society to hurt him back
- Punishment as communication: punishment communicates to the criminal and society
that he has commited a wrong
Retributivism and proportionality
- Punishment should be proportional to the severity of the crime
- What is deserved punishment?
- Deserved punishment = r x H
- Responsibility (r): intentional?; negligent?; excuse?
, - Harm (H): death; rape; injury; theft; et
Utilitarianism:
- Utilitarianism aims to achieve the maximum amount of happiness in society by
prevention of crime
Means of crime prevention
- Individual deterrence
- General deterrence
- Moral influence (positive general deterrence)
- Rehabiliation
- Incapacitation
Utilitarianism and proportionality
- No moral objections to punishment which does not match the retributive deserts of the
offender
Utilitarianism and proportionality
- No moral objections to disproportional punishment
- However, in practice punishment is usually proportional:
- The greater the offence is, the greater reason there is for a severe punishment
- Disproportional punishment might lead to public outrage
- Parsimony principle (subsidiarity): a sanction may only be as severe as is
necessary to achieve prevention
Mixed theories
- Mens rea required (no absolute liability)
- Within the bounds of deserts, the amount of punishment is determined by utilitarian (and
retributive) principle
Substantive law:
Substantive law identifies which behaviours are allowed and prohibited in a given
society.
This law focuses on the definition (found in statute or common law) of the law broken (ie,
behaviour prohibited).
- In the criminal law context this includes (among other):
- theories of punishment
- what is a criminal offence?
- the availability of defences/excuses to the offending
Procedural law:
Procedural law focuses on how the substantive laws are to be administered and
enforced.
These laws outline the legal process to safeguard a person’s legal rights and ensure a
government is not over extending their permissible powers.
- In the criminal law context this includes (among other) rules concerning:
- criminal investigations
- criminal prosecutions
- criminal trials
