Samenvatting
Criminal Law Lecture Videos Summary
- Instelling
- Tilburg University (UVT)
This summary summarised everything that is discussed in the knowledge clips (lecture videos). Topics from all 12 weeks are covered.
[Meer zien]Voorbeeld 4 van de 67 pagina's
Voorbeeld 4 van de 67 pagina's
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Voorbeeld van de inhoud
Week 1: What is Criminal Law?- Definition of criminal law: Where it comes from and why we need it
- Sources of criminal law
- Different criminal courts
- Goals of criminal law and punishment
- Conditions for establishing criminal liability
- Jurisdiction in criminal cases
● Definition of criminal law:
- What is it about? Criminal Law concerns the most fundamental values, values that are
inherent in being human. People who committed crimes (offender or victims) are still
people just like you and me.
Definition: Criminal Law is a field of law which describes criminal liability, which acts are
prohibited and which sanctions can be implemented if the law is violated.
What is criminal law? What are the main sources of criminal law? (Substantive law v.s.
Criminal Procedure)
❏ Substantive criminal law: Refers to the body of rules that determine how one is to
behave. It’s part of criminal law that describes or defines which act constitutes a criminal
offence and under what condition or circumstance they do so, which sanction can be
imposed and the primary condition under which criminal law should be applied. To put it
simply, substantive criminal law is a field of law that determines which acts are criminal
and in which ways the authorities can respond to these acts.
- (Norms in) Criminal law protects legal interests e.g. life, property and possession
- But also used as form of governance to regulate mirror wrongs: Accordingly, criminal act
can be defined into two categories:
- ‘Mala in se’ v.s. ‘Mala prohibita’
Mala in se
Crimes that are considered to be ‘Mala in se’: Literally mean that it is evil in itself, refers to
conduct or act that are inherently evil or wrong by nature, regardless of whether the act is
prohibited by statute or other valid sources of law, e.g. Murder, rape, theft. Most people
considered these acts to be evil or sinful regardless of regulations. The norms that are violated
by these acts simply form a fundamental condition for a viable society.
Mala prohibita
- Not considered to be inherently evil but are rather wrong because they are prohibited by
law.
- The norms that are violated by those acts are rather superficial in nature and are more
aimed at regulating society. In most if not all countries, e.g. drivers are required to have a
valid driving license. No driving license-- committed an offence but this act is not
, considered wrong because it’s inherently evil but simply because it’s prohibited by the
law
❏ Procedural law (Criminal procedure)
Criminal Procedure: The body of rules through which substantive criminal law can be enforced.
It describes the formal steps that can/must be taken to enforce substantive criminal law.
- Contains rules that regulate:
1. Investigation (e.g. searches and interrogations)
2. Trial
3. Appeal
- It deals with questions such as under which circumstances can a person be considered
a suspect/ under what conditions certain measures can be used e.g. pre-trial, primacy,
what are the rights of the accused.
We can put them in 2 categories but this does not answer the question about where we can find
criminal law and who is responsible for making criminal law.
Criminal Law: who makes it?
Criminal law is created by:
- The state/ federal legislator
- Lower legislators (municipalities) -- more local level
- Supranational institutions e.g. the EU (globalization impact)
- Criminal courts (in common law countries)
Main sources of criminal law: Many different legal systems, various methods for the purpose
of classifying the systems. Classification of legal systems into so-called legal families. The
members of the legal share particular features such as the historical background, the legal
institutions, their ideology etc. More important: the classification into legal families also has
consequences for the source of law. What is recognised as a source of law within a legal
system is closely related to its classification. In the western world, two major legal traditions can
be distinguished→ Common and Civil law systems.
1. Criminal Codes
2. Acts of Parliament/Congress (statutes)
3. Case law: To be seen as a supplementing enacted law
Common law system e.g. English and American law are uncodified. They are characterised by
case, case reasoning. Although common law is to be found in some statutes, emphasis is put
on judge-made law. Common law is largely based on so-called president, judicial decisions that
have already been made in similar cases.
Civil law systems such as German and Dutch law are generally codified. They are
characterized by abstract reasoning and the emphasis on statutory law. Exhaustive criminal
codes are the primary source of law. But case law is still considered a source of law, the judges’
decisions are not as crucial as shaping law as it is in common law systems. The contrary, the
judge decides on the case within a framework determined by statutes, case law is seen as a
,supplementing enacted law. For example, Dutch court: not obliged to see the ruling of higher
courts. However, in practise, Dutch courts do follow the decision of the supreme court.
4. Treaties and other international regulations: Over the last century, treaties and other
international rules have also become a more important source in most legal systems,
e.g. European Convention on Human Rights and Fundamental Freedoms. Art. 6 → Will
be discussed in week 8, a right for trial, utmost important for every member state.
5. Doctrine (scholarly writings): doctrine is not a binding source of law but it can influence
the way certain concepts are interpreted and eventually be a source of inspiration or a
trigger to amend the law. Example: Case note, critical analysis is provided for a certain
case, specific issues are addressed
6. General principles of law: Either codified or uncodified. Can be described as abstract
norms that refer to the fundamental legal values that underlie the whole of the legal
systems, e.g. Prohibition of arbitrariness. Within the scope of this prohibition, there are
other principles that can be distinguished, e.g. the equality principle, the prohibition of
wrongful use of investigative power
How do all of these unfold in practice? Which court will decide on the case?
3 Levels with regard to Criminal Courts:
1. National level: Pre trial investigation→ Decide whether to file charges. If criminal
charges are brought against me, first the lower court will decide whether to convict me. If
the prosecutor doesn't agree with the decisions, turn to the court of Appeal and file an
appeal against the judgement. I might well be that the defender or prosecutor also
disagrees with the decision of the Court of Appeal. In that case, the case can be brought
before the supreme court. However, it’s worth mentioning that all of these depend on the
national legal system at hand.
- Lower Courts
- Courts of Appeal
- Supreme Courts
2. Human rights courts: Aimed at ensuring human rights and guarantee that they are
protected as the rule of law promoted.
- African Court on Human Rights (Tanzania)
- Europe Court of Human Rights (in France)
- Americas (San Jose, Costa Rica)
3. International level:
- International Criminal Court
- Criminal tribunals (ICTY, ICTR, SCSL)
Why do we need criminal law? What purposes do punishment serve? It’s important to always
ask yourself why we have certain theories and concepts. Challenge yourself to think
independently and critically.
, Aim: To maintain and restore order in society and to prevent lynch law. Instrument to protect
society from harmful and dangerous human behaviour, safeguard society most important values
and interests. Criminal law provides a certain degree of predictability, determines the standard
of conduct, people therefore know what they can expect from one another, which subsequently
creates some certainty.
3 Functions of criminal law:
- Declaratory: Our society embodies various values and interests which are of the utmost
importance to us. This consequently results in certain norms by which we have to bind in
order to protect those values and interests. By criminalising certain acts or conducts, by
creating the possibility to impose sanctions in case of violation of the norms just
mentioned, we emphasize the importance of these norms and the values and interests.
We declare these norms to be inherent to our society.
- Preventive: Harmful acts cause fear which consequently can give rise the need for some
kind of rules. In earlier times, people would take the law into their own hands, they would
avenge the harmful act on their own in the sense of an eye for an eye and a tooth for a
tooth. → Trigger revenge acts and result in various consequences, e.g. chaos. That’s
exactly what criminal law seeks to prevent.
The idea is, by imposing sanctions on the violation of norms, people will be less likely to commit
crimes. Protect society from harmful and dangerous conduct. Safeguard society’s interests and
values. Prevent potential crimes from being committed. Severe punishment of those who have
committed a crime would make potential criminals think twice before they act, punishment does
have a threatening effect as result of which the commission of crime is discouraged. Afterall,
people are rational and calculating beings. (are they?)
- Censuring: Through the imposition of punishment on the violation of certain norms
(criminal conduct), criminal law conveys society censures of certain behaviour.
Punishment is an expression of strong disapproval. Further prevent criminal conduct,
resisting the temptation to commit crimes.
Three views on punishment:
1. Retributive theory: Those who committed crime deserve to be punished. The infliction of
harm on society simply creates the right for the harm to be inflicted back by society.
Punishment can be regarded as a form of moral tension, restoring the balance which has
been offset by the harmful act. Punishment also distinguishes or satisfies the personal
need for revenge. With the retributive view, the aim of punishment concerns retribution,
punishing the offender in order to venge the harm he or she has inflicted in the past on
society.
2. Utilitarian theory: Punishments are justified by the benefits they can have in the future for
the society as a whole. Afterall, all society strives for is ultimate happiness. Crimes affect
happiness. Therefore, the commission of crime has to be discouraged. Punishments are
seen as an instrument to do so. Various aims can be distinguished.
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