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Criminal law
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Notes from the Criminal Law course, from Global Law.
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LECTURE 1● Substantive criminal law: field of law that determines which acts are criminal.
○ Criminal law protects legal interests (e.g. life)
○ But also used as form of governance to regulate minor wrongs
○ ‘Mala in se’(= evil in itself, evil/wrong by nature, like murder/theft) vs. ‘mala
prohibita’(= not inherently evil, but are still prohibited by law, aimed at regulating
society, like having a valid driver's license)
● Criminal procedure/Procedural law: the formal steps that can/must be taken to
enforce substantive criminal law.
○ Contains rules that regulate:
○ Investigation (e.g. searches and interrogations)
○ Trial
○ Appeal
○ E.g. ‘under which circumstances is a person considered a suspect?’
● Criminal law is created by:
○ The state/federal legislator
○ Lower legislators (municipalities)
○ Supranational institutions (e.g. EU)
○ Criminal courts (in common law countries)
● Main sources of criminal law:
○ Criminal Codes
○ Acts of Parliament/Congress (statutes)
○ Case law
○ Treaties and other international regulations
○ Doctrine (scholarly writings) (however, this is not binding, merely a source of
inspiration)
○ General principles of law
● Criminal courts:
○ National level
■ 1. Lower courts
■ 2. Courts of appeal
■ 3. Supreme court
○ Human rights courts
■ Africa (Tanzania)
■ Europe (Strassbourg)
■ Americas (San Jose)
○ International level
■ International Criminal Court (ICC)
■ Criminal tribunals (ICTYugoslavia, ICTRwanda, SCSL)
, ● Why do we need criminal law?
○ Aim: to maintain and restore order in society and to prevent lynch law(= the
punishment of presumed crimes or offenses usually by death without due
process of law).
○ Functions of criminal law:
■ Declaratory (= protecting and emphasizing values of society)
■ Preventive (= prevent potential crimes from being committed)
■ Censuring (= endorses importance of norms, and through punishment no
more temptation to commit crimes)
○ Three views on punishment:
■ 1. Retributive theory (those who commit crimes, deserve to be punished,
in order to restore the balance that has been upset by the harmful act)
Focuses on PAST.
■ 2. Utilitarian theory (punishments are justified by the benefits they can
have in the future for the society as a whole, crimes affect happiness, and
society strives towards happiness) Focuses on FUTURE.
■ 3. Hybrid theory (rebutive + utilitarian theory mixed!)
● Aims of punishment:
○ 1. Retribution = those who commit crimes deserve to be punished
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○ 2. Incapacitation = form of revenge
○ 3. Deterrence = impose punishment, people will be put off from committing
crimes, functions as a kind of ‘threat’
■ I. general deterrence → more general, not aimed at one person, but at
the public
■ II. special deterrence → aims at discouraging an individual person,
directly concentrated on that one individual
○ 4. Rehabilitation = attempts to reintegrate the offender into society, rehabilitate
○ 5. Restoration = restore what was first destroyed
From 1 → retributive theory
From 2-5 → utilitarian theory
Inherent tension between different aims
● Conditions/requirements for criminal liability:
○ I. Act (including actus reus) → objective side
■ A willed, voluntary act (however, not all actions have to be conscious in
the entire act, but the person did have a certain control over his actions!);
■ Committed by a human being of a certain age;
■ Caught by the legal definition of a criminal offence in a certain country
(actus reus);
○ II. Causation
■ Causal link between act and consequence:
■ X would not have happened for Y;
, ■ No causal link? → No criminal liability!
○ III. Fault (mens rea) → subjective side
■ Defendant must have acted with a ‘guilty mind’;
■ E.g. he must have intentionally killed the victim
○ IV. Wrongdoing (= no justification)
■ Under certain circumstances, the act may be justified;
■ E.g. on grounds of self-defence
■ Conduct may still be harmful, but is no longer considered ‘wrong’
○ V. Blameworthiness (= no excuse)
■ Under certain circumstances, a defendant may be excused;
■ E.g. on grounds of duress or involuntary intoxication
■ If there is a legal excuse, then the defendant did not act blameworthy
I-III → pre-conditions
● Scope of criminal law: jurisdiction
○ 1. A government’s power to exercise authority over all persons and things within
its territory.
○ 2. A court’s power to decide a case.
● Example: A Danish man who lives in the US assaults an Indian woman on a Dutch KLM
flight from Washington D.C. to Amsterdam.
○ Which of these countries can claim jurisdiction?
● Heads of jurisdiction
○ Territorial jurisdiction:
■ Extended to include vessels (every state has the right to create criminal
prohibitions which are binding on every person on its territory*) *ALSO
applies on the board of all airplanes registered to that country!
○ Extraterritorial jurisdiction:
■ Nationality principle (state may exercise jurisdiction over its nationals,
REGARDLESS of where they are)
● Active → state can assert jurisdiction over the conduct of its
nationals outside of its borders bc the perpetrator has the
nationality of that country
● Passive → jurisdiction over acts of the offender bc the victim is its
national
■ Universality principle (state has the power to assert jurisdiction over
serious international crimes, bc some crimes are so troublesome as to
constitute a threat to national peace and security. that all states have a
legitimate interest the prescription and enforcement of such crimes, like
piracy and slave trade)
○ Double criminality:
■ The particular act must constitute a crime in both jurisdictions (the
jurisdiction where the crime was committed and the jurisdiction where the
defendant is put on trial)
, LECTURE 2
● What is criminalisation? → “The process by which behaviors and individuals are
transformed into crimes and criminals”
○ Criminalisation:
■ Content of criminal law depends on societal values
■ Regional + temporal differences
○ Example: decriminalisation in homosexuality (used to be a crime, but many
country decriminalized it)
■ England & Wales in 1967
■ India in 2018
○ Example: decriminalisation of marijuana
■ Uruguay in 2013 (effective 2018)
■ Canada in 2018
● Why do we need criminalisation theories/principles?
○ Consistency (legality principle → law needs to be consistent)
○ Criminal law is most coercive instrument
● Theories of criminalisation
○ Utilitarian: criminalisation for the greater good (but who gets to decide what the
‘greater good’ is? And what is it?)
○ Law & economics: cost-benefit analysis (may also lead to unjust results)
○ Legal moralism: criminalisation of immoral conduct
● Threshold criteria: harm & wrong
●
● Harm
○ Harm is a setback of interests; causes negative effect
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