This document covers all topics which are discussed throughout the criminal law course from weeks 1-12. It contains all relevant steps for the analysis in the exam, as well as all relevant case law and provisions/articles of the relevant law; hence with the summary and steps of analysis, a good gra...
Substantive criminal law: refers to the body of law that determines how one has to behave -
which behaviour / acts is regarded as criminal and in which ways can the authorities respond to
these acts
● Field of law that determines which acts are criminal and under what circumstances they
do
● Which sanctions can be imposed
● The primary conditions under which criminal law should be applied
● Criminal law protects legal interests (e.g. life, property, possession)
● But also used as form of governance to regulate minor wrongs
● ‘Mala in se’ vs. ‘mala prohibita’
difference between crimes that are considered mala in se and crimes considered mala prohibita:
mala in se = crimes which are committed out of evil behaviour and thinking. It is wrong in itself
by nature, e.g. murder, rape (inherently evil)
mala prohibita = not wrong because it is evil or wrong by nature, rather the crime is wrong
because it is prohibited by law (not inherently evil)
Procedural criminal law: concerns formal process that must be taken in order to enforce
substantive criminal law. It is about the rules regulating the investigation of a criminal act, trial
process and stage of appealing a decision
Contains rules that regulate:
● Investigation (e.g. searches and interrogations)
● Trial
● Appeal
the difference between substantive criminal law and criminal procedure:
➔ substantive criminal law, defines criminal offenses and potential defenses as
well as permissible forms, and severity, of punishment for particular offenses,
➔ criminal procedure, governs the rules that apply to the investigation and
apprehension of suspects and pre- trial, trial, and post-trial criminal proceedings.
Criminal law: who makes it?
● Criminal law is created by:
● The state/federal legislator (on a national level)
● Lower legislators (municipalities)
● Supranational institutions (e.g. the 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) - it can influence how certain concepts are interpreted and it
might eventually even trigger the law to be amended
○ E.g. case notes
● General principles of law - principles are either codified or uncodified & can be described
as abstract norms that refer to the fundamental values that underlie the whole of the
legal system
○ equality principle, the principle of proportionality and subsidiarity
● Aim: to maintain and restore order in society and to prevent lynch law - so it’s used as
an instrument to protect society from harmful and dangerous human behaviour
○ Criminal law also provides certain predictability
○ → people know what to expect from each other which creates some certainty
Comparative law: legal families - members share particular features such as the historical
background, legal institutions and ideology
Common law: mainly based on judge-based law, precedents
Civil law: generally codified, focus on statutory law, the judge’s decision is not as important as
in common law systems, no principle of precedent (stare decisis)
Criminal courts
National level: a prosecutor would normally conduct a pretrial investigation and decide whether
to file charges
1. Lower courts (court of first instance) - if charges are brought, this court will convict or
acquit the defendant
2. Courts of appeal - (appeal against the judgment)
3. Supreme court - judge or prosecutor disagrees with the outcome of the court of appeal
➔ depends on the national legal system
Human rights courts: aim at human rights being protected & the Rule of Law is promoted
➢ Africa
➢ Europe (ECHR)
, ➢ Americas
International level:
International Criminal Court
Criminal tribunals (ICTY, ICTR, SCSL)
Functions of criminal law
Declaratory:
● values and interests in society - certain norms by which we have to abide by in order to
protect those values and interests
● By imposing sanctions for violations of norms, we stress the importance of these values
and interests that we cherish in society
● We declare these norms to be inherent in our society
Preventive:
● by imposing sanctions on the violation of norms, people will put off from committing
crimes
● Preventing potential crimes from being committed → severe punishments for crimes lets
others think twice
Censuring:
● through punishment due to the violation of certain norms, criminal law conveys society’s
censure or disapprobation on certain behaviour → punishments are an expression of
strong disapproval
● Thisagain endorses the importance of the norms
➔ Punishment = intentional infliction of suffering upon an individual (must have 5 elements)
Aims of punishment:
(1) Must involve pain or other consequences considered unpleasant
(2) Must be for an offence against legal rules
(3) Must be of an actual or supposed offender
(4) Must be intentionally administered by a human being other than the offender
(5) Must be administered and imposed by an authority constituted by a legal system against
which the offence is committed
● Retributive aims = idea that there is an undetermined moral reality above sensory
perceptible reality where men have free will and therefore should be held responsible for
crimes which they are guilty of
○ Retribution
, ● Utilitarian aims = only an empirical reality that is utterly causally determined. Punishment
is required for ensuring happiness for the greatest number of people.
○ Incapacitation
○ Deterrence (general or specific)
○ Rehabilitation
○ Restoration
Three theories on punishment:
1. Retributive theory: those who commit a crime deserve to be punished, when you inflict
harm on society, society can inflict harm back to you
● Those who should be punished are the culpable and blameworthy = free will is required
to commit the crime
● Reason for punishing: committed sin
● Backward-looking ⇒ focus on past
● Punishment = effective means of achieving prevention
● can be regarded as a form of moral vengeance - it restores the status quo ante
● fulfil the personal need for revenge
● Reflecting moral disapproval
● The aim is to punish the defender in order to ‘balance’ the caused harm by the person
responsible, who affected society by this behaviour
→ How severe? punishment must be proportional to the seriousness of the crime & culpability
of the offender
Aim of punishment
Retribution: punishing the offender in order to avenge the harm he/she as inflicted in the past on
society
2. Utilitarian theory: looking at the benefits it can have for society in the future as a whole
→ society strive for happiness and crimes affect happiness, so crime has to be
discouraged
● Punishment is seen as an instrument to do this
● Culpability not needed
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