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Comparative Criminal Law- complete summary week 1 and week 2
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Comparative Criminal Law- complete summary week 1 and week 2
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Week 1: On the nature of crimeTypes of Criminal Law:
Act based system of Criminal law (Tatstrafrecht): when punishment is understood
to be imposed for the criminal act.
o It is necessary to demonstrate the defendant as responsible and culpable.
The punishment that results will be conceptually connected to the wrongful
act. To identify this connection, Nozick’s formula for deserved punishment is
applied.
R=r(W): The level of deserved punishment increases as W increases.
W- gravity of the wrongdoing. In an act based criminal law
system, punishment is imposed for the wrongful act, the
gravity of which determines W.
r- the degree of responsibility ranging from 1 to full
responsibility.
o How to approach wrongdoing
1) The crime is viewed as intrinsically wrong regardless of the norm
that makes the act punishable. (mala in se)
2) the wrong is seen as a consequence of violating a norm which has
been formed through legislation (Mala prohibita)
Wrongdoing is viewed through two different perspectives
o What is the relationship between duty, harm and norm:
mala in se and mala prohibita: norm perspective will deny that this
distinction exists from a legal point of view. The harm and duty
principle will endorse this distinction of legal elements
Mala in se: refers to acts which are intrinsically wrong,
regardless of the norm that makes the act punishable. The act
violates a norm but this is a secondary consideration in the
judgement of the wrongdoing. Example: nearly all the
international crimes qualify under this category in the Rome
statute.
Mala Prohibita: refers to acts that are wrong only because of
the statutory violation as proposed by the legislative branch. If
there was no legal norm prohibiting the action, the public
would not know for it to be wrong. This is the kind of evil that
is forbidden by the state.
o How to identify conduct which is criminal (According to Fletcher)
Violating a Duty
Stemming from Kant’s moral theory, crime is seen as the
inherent wrong of transgressing against one’s duty. The
general point is that crimes based on the violation of duty
dispense with the necessity of an impact on others.
Causing harm to another
Understood as irreversible negative impact on the protected
interests of another. This is linked with a libertarian approach
, to criminal law. Brings the victim to a central position within
crime and punishment, which is also linked to the utilitarian
tradition, punishment is to further the interests of society.
Role of legal norms
Not analysing harm as simply causing harm but ‘causing harm
under particular circumstances’
‘Attitude based criminal law’(Gesinnungsstrafrecht): if the punishment focuses
exclusively on guilt or subjective disposition of the offender, regardless of any action
that he or she has performed
o Guilt based criminal law: Accountability vs guilt
Accountability remains unless there is reason to think otherwise
Guilt implies a positive identification in every case of criminal
wrongdoing subject to punishment. It can be addressed through
degrees
Two people can commit the same offence but the guilt is measured in
degrees of responsibility. (e.g. intentional vs unintentional homicide).
Guilt based blaming is directed towards people rather than actions.
o Attitude based criminal law: not guilt or blame for a wrongful act, but guilt or
blame as an inquiry in itself. This view developed out of the national socialism
movement and emphasizes certain antisocial attitudes that make the person
an enemy of the state. Guilt is seen as a useful sentiment to reform society.
‘Actor based criminal law’(Täterstrafrecht): when punishment is inflicted on the
suspect because of the kind of person he or she is (ie. dangerous offender).
o Characteristics of actor based criminal law:
The emphasis is not on the crime or the offenders guilt but it is on the
offender as a person. The level of guilt is assessed by an inquiry into
the degree which the offender warrants blame.
The character of the criminal is expressed in the crime they commit
(e.g. murderer, thief)
Clear distinction between criminal acts requiring punitive
imprisonment or acts that would be deemed dangerous requiring civil
confinement. Actor based criminal law considers personal
dangerousness from the circumstances surrounding the commission
of the criminal act.
Criticism: If the ultimate goal is social control, it is unclear why there is
still a requirement of a criminal act to produce confinement. This is
illustrated in Demjanjuk
Not enough evidence he was Ivan the Terrible but the Court
concluded that he had probably been a guard at a nazi death
camp and therefore, his character was impugned regardless of
if he was actually dangerous at that current age.
o They had to acquit because they function on an act
based system of criminal law.
Approaches to Criminal punishment: who do we punish, why and how severely
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