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PPLE Comparative Criminal Law 2018-2019
Summary by Tahrim Ramdjan
Week 1: Introduction
Heller & Dubber: Introduction to Comparative
Criminal Law
One of the reasons that comparative criminal law is studied so little, may be that
the idea of Anglo-American criminal law may still be regarded as sovereign to the
state.
o Criminal law is inherently tied with a state’s ability to police, which is
discretionary and indefinable per state, hence one cannot critically analyse
a police regime.
In the Enlightenment, however, comparative criminal law was thought to be
essential, especially in drafting modern German criminal law. Its founder,
Feurbach, even meant for a universal legal science.
o It served to reconcile the traditional conception of criminal law with the
safeguards that the state ought to offer.
There are different grades of comparativism to be distinguished in criminal law.
o The least ambitious and least comparative is America. America adopted the
Model Penal Code in 1962. Ever since, American law is no longer a
unified common law subject: it is a form of internal comparative criminal
law as there are many jurisdictions in America with their own criminal
codes. Yet, many legal scholars fail to realise that, and still continue to
treat American criminal law as a unified body of law, falling into the larger
body of common law.
o The German Penal Code knew a project that ambitiously tried to revise the
code by international comparative analysis, but this project stranded.
o The Canadian Supreme Court oftentimes refers to foreign criminal law,
but most often to other common law countries. One could thus also
perceive their elaboration on those principles as mere evidence of common
law precedents.
o The enterprise of international criminal law is inherently comparative: Art.
21 Rome Statute instructs judges of the International Criminal Court to
distil general principles of law from the national systems of the world.
This introduction serves on to elaborate on key distinctions of sixteen systems
around the world. In the order of the introduction:
Originally established a simple regime of sanctions, but many reforms
Argentina
and amendments have increased complexity of this text.
Used to be purely common law, but many jurisdictions adopted codified
Australia systems of criminal law (‘code jurisdictions’) or extensive criminal
consolidation statutes (in still remaining ‘common law jurisdictions’).
All criminal law in Canada is federal, including some areas that usually
aren’t regulated by criminal law (tobacco advertising, pollution). Some
Canada
criminal law principles are criminalised: e.g. no statutory definition of
duress so that this principle won’t be restricted.
Many principles of traditional Chinese criminal law abandoned (no
China separation between administrative and judicial powers, extension of
crimes by analogy). But, then again, still death penalty.
Progressive role of the Supreme Constitutional Court in its
development, by striking down presumptions of knowledge on the basis
Egypt
that they violated the presumption of innocence. Restrictive, though, on
terrorism offences.
France Dolus eventualis does not satisfy the mens rea requirement of a crime
that requires a special intent to cause a result forbidden by law. One
gets convicted of either a separate substantive offence, or sentenced as
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PPLE Comparative Criminal Law 2018-2019
Summary by Tahrim Ramdjan
if this was an aggrevated negligence.
Remarkably systematic, regarding fundamental rights more so.
Centrality of right to life. Federal Constitutional Court deviated from
Germany
prohibition on retroactivity in conviction of German Democratic
Republic soldiers.
Comprehensive taxonomy of homicides (culpable homicide amounting
to murder, culpable homicide not amounting to murder). Reference to
India
caste system: objective reasonable man standard is perceived in light
of one’s class.
Based exclusively on classic Islamic criminal law. Some principles have
Iran different meaning regarding different offences. State only conducts
proceedings on demand of the victims.
Foresight rule: Mens rea of all intention crimes is satisfied if person
Israel knew that particular result was almost certain to occur (similar to
‘oblique intention’).
Negligence crimes play an unusually large role, while this system is
Japan
very lenient: rarely do offenders receive significant formal punishment.
Requirement for ‘socially dangerous act’, used to be interpreted largely
but now restrictively: an act that doesn’t pose a danger is society is not
Russia
criminal, even if it satisfies all formal requirements. Expanded, thus,
necessity and self-defence.
A person doesn’t act with mens rea if she subjectively didn’t appreciate
South
the unlawfulness of the conduct. True mistakes of law are always
Africa
exculpatory.
Victims have a right to pursue civil claims against a defendant within a
Spain
criminal proceeding.
Most common law of all systems: majority of rules still stems from
United
principles distilled from judicial decision-making. ECHR had a mediating
Kingdom
effect on that, especially the principle of legality.
Fragmented criminal law: each state adapts its own criminal code.
United
Some have adapted the Model Penal Code but others have yet to adopt
States
a modern criminal code.
Internation Rome Statute provides detailed definitions of core international crimes,
al Criminal possible modes of participation in those crimes, and permissible
Court grounds for exclusion of criminal responsibility.
Keiler & Roef III: Framework of Criminal Liability
1 Introduction
Most penal systems have two main elements of a criminal offence: harm and fault.
o Harm is an external element: there needs to be some form of conduct that
causes harm. This is referred to as the actus reus of an offence. This is
the tangible side of a person’s conduct, that can objectively be assessed.
o Fault is a subjective element that needs to be assessed to establish
whether the defendant actually acted criminally. This is referred to as the
mens rea of an offence. This entails the person’s state of mind which can
only be subjectively assessed.
The aforementioned distinction is not a very strict dichotomy: they constitute
interrelated concepts. Generally, when the objective requirement is set quite low,
the subjective element will be at a higher threshold: actus reus and mens rea may
then function as communicating vessels.
2 Actus Reus and Mens Rea
2.1 Actus Reus
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PPLE Comparative Criminal Law 2018-2019
Summary by Tahrim Ramdjan
The element of actus reus is prima facie fulfilled if a person has committed the
conduct described in a (statutory) offence.
Normatively, actus reus serves to establish a link between the person and the
occurred criminal harm. It translates an empirical event into a criminal one.
Usually, actus reus of an offence can consist of three elements:
1. Conduct: some offences require some form of conduct to take place. This can
also take the form of a less visible conduct, for instance in a state of affairs.
Examples: possession of illegal drugs, or unlicensed firearms.
2. Consequences: the harmful consequence gives rise to the criminal character
of the offence.
Example: in homicide: the death of another human being.
Why not conduct? It’s murder regardless the way you do it (conduct).
3. Circumstances: may require certain qualities in the person who commits the
crime, to be fulfilled for criminal liability to arise.
Examples: handling stolen property (the property must be stolen), or rape
(the victim has not consented).
The English law may apply different standards of mens rea to different elements of
the actus reus.
o Oftentimes, direct intention is applied to the consequence element,
whereas a lower degree of mens rea is applied to the circumstance
element.
One can additionally distinguish between:
a) Conduct crimes, which do not require a specific result but are committed
once the prohibited conduct has taken place. A causal connection need not be
established: only conduct and fault. Wrongdoing seems to be established by
the conduct itself.
Example: murder, manslaughter.
b) Result crimes, which requires a specific result to occur (murder,
manslaughter). Causation must then be proven, in addition to conduct and
fault. Wrongdoing is established by the harm that the crime produced.
Example: rape.
Some crimes meet the bar of strict liability, when only causation and conduct
need to be proven, not fault. They are often traffic or environmental offences, for
instance, in the Dutch and English penal systems.
Example: for speeding, you do not need to prove the intention of the driver
to exceed the speed limit: the mere fact that she did suffices for the
offence.
Note that actus reus is a heterogenous concept because it raises two questions,
which means that it is indispensably linked to two other doctrines:
1) What does it mean to ‘act’ in a way relevant for criminal law?
Omissions
2) How does one establish a link between the defendant’s conduct and the
occurred harm? Causation
2.2 Mens Rea
There are gradual differences in the mens rea that is required on part of the
defendant. Generally, the intentional actor is considered most reprehensible and
culpable.
o See this distinction reflected in the distinction between murder (intentional
homicide) and manslaughter (failing to comply with obligatory care).
Mens rea is understood as a psychological disposition related to the actus reus of
the offence in question.
o However, how do you go about negligence? It’s a failure to comply with a
certain standard of diligence. Negligence, thus, wouldn’t constitute a state
of mind, but rather the absence of a state of mind.
o Negligence is very popular in civil law countries but not so much in
England.
