1. Compiling v Comparing Criminal law
a. Language barrier exists to compare different jurisdictions (or system as a
whole)
b. Why do we compare criminal law?
i. Facilitates critique of domestic criminal law
1. For legislative reform - trying to deal with something new; by
looking at another system & looking at another model
2. Corporate Criminal responsibility (Criminality): mostly
common law, in civil law systems not traditional to prosecute
professionals; as they are not natural legal persons but can be
prosecuted and punished. It became highly international e.g.
shell -> civil law countries are moving towards to recognise
corporate criminal responsibility. Then they look at other
countries which have already done that e.g. U.S
3. Capital punishment - Judicial decision making
a. Alkins v Virginia: Death penalty -2002 most of
countries abolished death penalty
b. Roper v Simmons: Prohibition of executing a minor
offender; still 7 countries did in 2005. So executing a
minor is far off
4. Scholarly contribution (pedagogic tool): compare individual
domestic criminal law system
5. Duty to rescue - criminalisation ?
a. American perspective: prob no duty of care exist; not
saving a drowning kid
b. Most of civil law systems: prob it is a criminal act
ii. International criminal law
1. Essential source: over the past 25 years.
2. Before Rome Statutes, it was written in a common law fashion.
Judgment will be based on domestic law, fill gaps in
international law by comparing different criminal law systems.
3. Yugoslavia tribunal
a. Duress - accepted in most countries, but common law
countries not allowed; so the defence was not allowed
and convicted for execution
2. Challenges of Comparative Criminal law
a. Language - particularly prominent in criminal law. You don't really see
English translations e.g. DE & Spanish criminal law cannot be found in
, English even though the law is quite influential. Lacks communications
between English spoken countries and non.
i. Example 1: whether and how to punish ‘unknowingly justified
defendants’?
1. Under the circumstances: the defendant was unknowing about
the act
2. Huge debate in 1970’s in the U.S. e.g. Jane who is a fan or
Arsenal, intended to kill John simply because he was a fan of
manchester united, which she hated. So she went to John’s
house and killed him. But after, it was found that John was
about to buy the gun and shoot the school with the gun. In this
case, can Jane avail herself from a conviction?
a. Robinson: self-defense is justification. It is a right thing
to do. Not murder but probably can convicted for
attempted murder. The act may be justified. He was
heavily influenced by German criminal law and many
German scholars already adopted this position before
him.
b. Fletcher: No. other way around. He wanted subjective
approach; the defendant needs to know what he/she is
doing. It is a murder for the defendant.
ii. Example 2: objective imputation for causation e.g. defendant stole a
car and chased by the police cars. Helicopters clashed to each other
and pilots died. Then is he responsible for deaths of pilots? - the
defendant is not liable.
1. Conduct created unreasonable risk of harm
a. Riding on a pedestrian path/street
2. Resulting harm caused by specific unreasonable risk
a. Only applied on ground, not to people in the sky. If it
happened on land, the defendant might have been liable.
3. Therefore, the defendant cannot be liable for the conduct
resulted in deaths of pilots since he drove his car on street
4. German scholars did not know about objective imputation for
causation; in common law countries call them proximity cause.
Same concept can be called differently.
b. Differences in legal reasoning
i. Common law v Civil law - especially judges; makes comparative law
difficult
ii. Common law judges
1. Inductive reasoning
a. Case before them and make the decision
, b. Decide similar cases same way; should probably reach
the same outcome
c. General principles arise; it is because X is a general
principle that underlies in reaching the same conclusion.
It is important because principle come to into explaining
outcome of the case.
i. Pragmatic approach; how to get the case right?
ii. Important for emerging new principle -
innovation; change overtime
1. Torture: US position; nothing justifies
torture. 1993 and 9/11 put pressure on
the term of torture; that it was perceived
as a wrong thing. Then general principle
did not fit and it was needed for
modification. In Time-bomb scenario,
torture is justified. Evolution of new
circumstances based on general
principles
iii. Civil law
1. Determine general principle that applied to cases
2. Determine case in light of general principles; deductive
reasoning meaning that certain principle to a certain case;
highly technical
a. Torture: Commitment prohibition of torture. IT IS
ALWAYS PROHIBITED. Just torture is wrong.
3. General principle not leading to conclusion/result ok, principles
should not be changed.
c. Historical differences
i. Huge impact on criminal law system
ii. In particular, you cannot understand common law how judges play a
prominent role
iii. Civil law approach; the way how criminal law is developed
iv. Examples
1. Principle of legality: it should be a crime when he commited,
cannot be done after, as he cannot be convicted for a crime he
committed before.
a. Defendant dropped a dead body into river. In his
country’s statues, there is only provision saying that you
cannot dig the dead body.
i. Common law: extend statues by knowledge; no
particular right directing the situation but
similar, then judges can extend the statue.
, ii. Civil law: he is not criminal, because it is not
mentioned in the statutes. Legislators can
changed the law but well as it does not mention
anything he cannot be convicted. Judges in civil
law countries do not extend analogy.
iii. Why do we have different principles
1. Common: cases were judge made; no
codified law
2. Civil: traditionally statutory based
2. Necessity: you can sometimes commit a crime if it was to avoid
a worse crime
a. If there is a small child suffocating in a car to break the
car window to save the kid. Sometimes balancing two
evils are not crystal clear.
b. Kill one intentionally but another not.
i. Common law: More people to be saved; killing
less people then the argument is allowed
ii. Civil law: no way
1. E.g. German constitutional court - shoot
down hijacked plane
a. It is still a crime to kill innocent
people in the plane even though
crashing it could have saved
more people in the resident
building.
b. Nazi influence; trauma
Recklessness = dolus eventualis
Lecture 2: Actus Reus
1. Actus Reus + Mens Rea needs to be proved by a prosecutor beyond a reasonable
doubt
2. Murder
a. A person commits a murder if they intentionally: Mens Rea cause the death of
another: actus reus (England)
b. 2 different actions elements
i. Conduct - stabbing, poison etc
ii. Result of the conduct (consequence): caused death to another human
being
3. Rape
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