What Is the Difference Between Criminal Law and Civil Law? | btcmu.info
In this lesson, learn what constitutes criminal law, examine the types of criminal law, and review significant criminal cases to gain an. What is less clear is how we are to work out what these things are. To trace the limits of the criminal law, we must engage in . should act, and of the priority relations between those values. Thus, each state has its own criminal code. Congress has also chosen to punish certain conduct, codifying federal criminal law in Title 18 of the U.S. Code.
Failing that, we have reason to want criminal law to call thieves and murderers to account, and to punish those who have no adequate account to offer. There is some scepticism about mixed views. For some, the worries are conceptual. Moore claims that justified punishment must be imposed for reasons of desert, and that for this reason the punitive and preventive functions cannot be combined. Several replies are available. First, even if this is a problem for a mixed view of punishment, it need not be for a mixed view of criminal law.
Grant that punishment must be imposed for reasons of desert. It does not follow that criminal offences cannot be created for reasons of prevention. Criminalization and punishment are different acts, and can be performed for different reasons Edwards and Simester Reasons that help make a positive case for our actions are often reasons for which we should not act.
That one will be financially secure is a reason to get married, but one should not get married in order to be financially secure. Similarly, to say that prevention helps make a positive case for criminal law—and for punishment—is not to say that judges should punish for that reason.
Other worries about mixed views are pragmatic Duff a. As criminal wrongdoing will persist whatever we do, the preventive function sets criminal law an insatiable goal. There is a standing risk that law-makers who pursue that goal will deprive us of a criminal law that fulfills its other functions.
Consider again the curial view. Plausibly, we have reason to account for wrongs like theft and fraud in criminal court, but no reason to account for every interaction with property or all misleading statements from which we stand to gain. If defendants are to be called to account for the wrongs, it is these that must be criminalized.
To criminalize trivialities—in pursuit of preventive ends—is to drain criminal proceedings of their intrinsic value Duff b. No doubt these are important worries. But they do nothing to suggest that we should reject a mixed view. At most, they show that law-makers also should not take prevention to be part of their mission. As we already saw, this conclusion does not show that prevention is not part of the positive case for criminal law.
And it may anyway be too strong. Law-makers who exclude prevention from their mission may refuse to create crimes that would prevent a great deal of harm. The cost of refusing to create these crimes might be greater than the cost of calling people to account for trivialities, and this might be so even when alternative means of prevention are factored in.
If we should not be abolitionists, criminal law must be capable of realizing some value that gives us sufficient reason to retain it. To offer an account of this value is to offer a general justification of criminal law. Obviously enough, the functions of criminal law tell us something about what this might be.
If the curial view is correct, that value consists in part in people offering answers that they have reason to offer. If the preventive view is correct, it consists in preventing criminal wrongs. So stated, however, these views do not tell us what the value of fulfilling each function actually is. The punitive view tells us nothing about what justifies criminal punishment.
The curial view tells us nothing about the value of calling people to account in criminal courts. The preventive view tells us nothing about the value of preventing crime. A general justification of criminal law fills this explanatory gap. We can make progress by distinguishing between value of different kinds. Some value is relational—it exists in virtue of relationships in which people stand.
That a relationship has such value is a reason to do what will bring it into existence. The value of friendship is a reason to make friends. The value of egalitarian social relations is a reason to break down barriers of status and rank. Some argue that we have sufficient reason to have criminal law because it helps us enter a valuable relationship: This argument can be developed as follows.
Just as slaves are dependent on their masters, so we are dependent on one another in the absence of a framework of legal rights: To avoid this, we need more than just rights that exist on paper. We need sufficient assurance that our rights will be respected, and we need a mechanism by which their supremacy can be reasserted in the face of wilful violation. Criminal punishment amounts to reassertion. Crime prevention provides reassurance. At the level of function, this is what the last section called a mixed view.
But the value of fulfilling both functions is one and the same: It is not clear why we should accept this claim. One source of doubt is the fact that some agents are unavoidably dependent—they lack the capacities required to live as independent beings.
This is true of some non-human animals, and some of those with serious disabilities. Precisely because of the capacities they lack, these agents are especially vulnerable to being abused or exploited. Ex hypothesi, this does nothing to secure independence. So it is not something that can be accommodated by the exhaustive form of the Kantian view Tadros b. On another view, the value of criminal law derives from a relationship that pre-exists it: Any such community has values in terms of which it is understood by its members.
If this self-understanding is to be more than a charade, the community must actually value its defining values—it must do what those values are reasons to do. Part of what it is for a community to value life is for it to respond to the taking: Criminal law is a body of law that requires the accounting.
Functionally, this is a version of the curial view.Criminal Law - Elements of an Offence
But the value of fulfilling that function is relational: This line of thought lends support to what I earlier called the communitarian view. On that view, criminal proceedings discharge secondary duties owed to the community as a whole. That such duties are part and parcel of a valuable form of relationship helps explains why we should think that they exist.
One objection to the view described in the previous paragraph is that it is unduly conservative. What justifies criminalizing a wrong—on that view—is that the wrong has a pre-existing foothold in the defining values of the community: Some communities, however, are characterised by systematic neglect of important values—by patriarchy, or racism, or distributive inequality.
When this is so, part of the justification for criminalization is not that it helps the community remain true to itself, but that it helps transform the community by reconstituting it in valuable ways Dempsey ; Both versions of the relational view—Kantian and communitarian—face another doubt.
It is plausible to think that this wrong is of concern to the criminal law in its own right.
It is plausible to think that whatever further effects it might have, preventing the wrong of murder itself helps justify criminalizing murder, and bringing criminal proceedings against murderers. On both the Kantian and communitarian views this is not the case. What justifies criminalizing wrongs, and bringing criminal proceedings against wrongdoers, is that this contributes to some larger social good—to the framework of legal rules we need for independence, or to the community remaining true to itself.
We may reasonably doubt that wrongs like murder matter to the criminal law only for these further reasons. The above remarks concern the kind of value that justifies having criminal law. We can also ask who is capable of realizing that value.
If that value is to be realised, someone must act on behalf of those who stand in the relationship. In most systems of criminal law, the job is done by the state—agents of the state create, apply, and enforce criminal laws. Some argue that in a legitimate system of criminal law this is the only possibility.
This view can be developed in a number of ways. Consider again the Kantian view. Some claim that coercion secures independence only if the coercer speaks for all those coerced. Otherwise it is just another independence violation. Only state agents can speak for all of us. So the enforcement of the criminal law must remain in their hands Thorburn a, 98— Defenders of the communitarian view tell a similar story. On both views, it is impossible for private persons to realise the values that justify criminal law.
If these arguments go through, they have obvious implications for debates about the privatization of prison and police services Dorfman and Harel They also offer us a sense in which criminal law theory must be political. It must face up to the question of whether there are essentially public goods, and ask what role they play in justifying the existence of criminal law Harel96— Consider the prevention of harm, or the prevention of moral wrongdoing.
A number of writers appeal to one or both values to justify the existence of criminal law Feinberg—; Alexander and Ferzan17; Simester and von Hirsch29— Because there are wrongless harms think of sporting injures caused without foul play and harmless wrongs think of botched conspiracies or undiscovered attempts the aforementioned values do not always wax and wane together.
A third possibility is that harms and wrongs provide two independent sources of general justification compare Tadros— Whatever the answer, this preventive value is impersonal in two ways: It is worth distinguishing between two versions of this view.
According to Moore, all culpable wrongdoers incur a duty to allow themselves to suffer. Retributive justice is done when punishment imposes that suffering, and this is what justifies the imposition of criminal punishment Moore70— Moore argues that the suffering of culpable wrongdoers is intrinsically good. On a rival view, suffering is always intrinsically bad. We must accept, however, that in some cases not all suffering can be avoided.
Sometimes we must choose between wrongdoers suffering now and others suffering at the hands of wrongdoers later. Only by imposing the former can we protect against the latter. It might look as though punishing wrongdoers for these protective reasons amounts to treating them as mere means.
But this is not necessarily so. Tadros argues that some wrongdoers incur duties to protect others at the cost of some harm to themselves. We can justify imposing punishments that come at this cost to these wrongdoers, when the punishments protect others by preventing future wrongs.
As those punished are only doing their duty, we can reasonably claim that they are not treated as mere means Tadros c; Though Moore and Tadros disagree on many things, their views also have something in common. The value to which both appeal to justify punishment is impersonal: General justifications of criminal law like those sketched in the last few paragraphs face a number of criticisms. One objection has it they are unduly expansive: But as the failure is a private matter—to be resolved by the friends themselves—there is no reason for law-makers to criminalize the wrong Duff b; Husak— There is certainly no reason for them to criminalize it when the friends are both citizens of another state, and the failure occurs in the other jurisdiction Duff Reasons to criminalize exist, as it is often put, only where law-makers have standing.
And the mere fact that a wrong generates the aforementioned secondary duties does not itself give law-makers standing to criminalize it. According to a second objection, the focus on moral wrongdoing is unduly restrictive: According to one argument for this conclusion, the stable existence of almost any valuable social institution—be it financial, educational, familial, military, or political—depends on widespread compliance with its rules.
Under realistic conditions, criminal liability for violation is necessary for stability. It is the value of stable institutions, not the moral wrongfulness of violating their rules, that justifies bringing criminal law into existence Chiao A third objection returns us to the asymmetry discussed at the end of section 1. Many of the powers and permissions by means of which criminal justice is done are withheld from private persons. Most obviously, private persons are not typically permitted to use force to punish others for crime.
Few think that this should be changed. Vigilantism should remain criminal. If the values that justify having criminal law are essentially public, we appear to have an easy explanation of this fact: If those values are not essentially public, things are more difficult.
Let us take the third objection first. If impersonal values justify having criminal law, we have reason to opt for whichever set of legal rules will realise those values most efficiently. If one set of powers and permissions will achieve more of the value in question at a lower cost, we should—all else being equal—opt for that set. Now compare two sets of rules. One permits state officials and private persons alike to use force to punish criminals.
Another withholds the permissions granted to the former from the latter. We have good reason to think that the first set of rules would bring with it significant costs. Private persons are likely to make more mistakes about who committed crimes, and about how much punishment is appropriate for criminality. Different private punishers are unlikely to punish similarly placed offenders in similar amounts.
And as their actions are less easily subjected to public scrutiny, private persons are less easily compelled to punish for the right reasons—in order to do justice rather than settle scores, get revenge, or maximise their profit margins Moore a, 42; Edwards forthcoming.
Avoiding these costs is a strong reason to opt for the second set of rules. True, that set prevents proportionate punishment being imposed by our imagined moot court. But it is plausible to think that this benefit is outweighed by the aforementioned costs. If it is, those who appeal to impersonal values to justify criminal law can explain why the moot court is not permitted to force us to give up our money. According to the second objection, what justifies having criminal law is its role in stabilizing valuable institutions.
By preventing these wrongs, and holding wrongdoers responsible, we stabilize the institutions. The contrast between a general justification focused on moral wrongdoing, and one focused on institutional stability, therefore turns out to be a false contrast Tadros These observations help make a more general point.
We can accept that criminal law is a tool properly used to support financial, educational, familial, military, and political institutions. If this kind of general justification is not too restrictive, is it nonetheless too expansive? This was the first of the three objections raised above. We need not infer that criminal law is unconcerned with moral wrongness. We need only accept that there are facts about criminalization which give law-makers a duty not to criminalize some moral wrongs.
There are many such facts, and their force varies depending on the wrong Simester and von Hirsch—; Moore In some cases, criminalizing a wrong will inevitably result in selective enforcement, raising concerns about selection being made on discriminatory grounds. In others, enforcement would necessitate gross invasions of privacy, and require the law to take sides in conflicts better resolved by the parties themselves.
There is often value in freely choosing not to act wrongly, and in so choosing for the right reasons, rather than because one was coerced: It will almost inevitably divert scarce resources from other valuable priorities. And there is often reason to think that criminalization will not result in there being less wrongdoing in the world. Criminal conduct may be driven underground rather than made less common.
Institutions of punishment may house unseen abuse and victimization. Ex-offenders may be driven towards crime by their reduced prospects in life. Where reasons like these generate a duty not to criminalize a wrong, the conduct in question is no business of the criminal law. The Limits of Criminal Law No-one denies that some things should not be criminalized. What is less clear is how we are to work out what these things are. One approach is to seek constraints on permissible criminalization.
Even if the values that justify having criminal law count in favour of criminalization, our reasons to do so may be defeated by reasons that count against.
A constraint identifies conditions under which the latter reasons always win. Consider, for example, the wrongfulness constraint: Principles like W give us a line we can draw without reference to at least some morally salient particulars.
Conduct that falls outside the line may not be criminalized come what may. Imagine we are considering whether to make it a crime to possess guns. Doing so will prevent a great deal of harmful wrongdoing that cannot be prevented otherwise.
This is a powerful moral reason to criminalize. But if W is sound, and gun possession is not morally wrongful, that powerful reason is irrelevant to the decision with which we are faced. We are not permitted to criminalize, however much harm criminalization would prevent Moore72—73; Simester and von Hirsch22—23; Duff b, — Some suspect that all purported constraints on criminalization fail Duff et al44—52; Tadros91— This is not to say that anything goes. It is rather to say that we cannot use a line like that drawn by W to work out what is permissibly criminalized.
To trace the limits of the criminal law, we must engage in a more complex normative exercise: The limits of the criminal law cannot be traced in advance of this exercise. Instead, they are determined by it. The constraint to which most attention has been paid is the so-called harm principle. It is nowadays widely recognised that there is no single such principle.
Rather, there are many harm principles Tadros a; Tomlin b; Edwards These principles have very different implications. That conduct is harmful, or unreasonably risks harm, does not show that we will prevent a proportionate amount of harm by criminalizing it.
Conversely, we may be able to prevent harm only by criminalizing conduct that is harmless, and that does not unreasonably risk harm. To see the first point, consider the use of drugs. Criminalizing use may turn a drug into forbidden fruit that is more attractive to potential consumers, and place production in the hands of criminal gangs who make consumption ever more harmful. Users may become less willing to seek medical treatment for fear of exposing their criminality, and may end up with criminal records that lead to social exclusion, and damage their employment prospects for years to come United Nations Where criminalization does have these effects, the harm it does is out of all proportion to any harm prevented.
To see the second point, consider the possession of guns. Possessing a gun is not itself harmful. And many possess guns without unreasonably risking harm. If one endorses HPPthings are different. What matters is not the effect of each instance of gun possession, but the effect of criminalizing all of them: To apply W we need to know what makes something morally wrongful.
But while this is necessary, it may not be sufficient. In regard to criminal law, the substance of the law is much the same throughout the common-law countries.
In both the United Kingdom and the United States, the 20th century was a period during which it was thought that undesirable behaviour… Principles of criminal law The traditional approach to criminal law has been that a crime is an act that is morally wrong. The purpose of criminal sanctions was to make the offender give retribution for harm done and expiate his moral guilt; punishment was to be meted out in proportion to the guilt of the accused.
In modern times more rationalistic and pragmatic views have predominated. With the development of the social sciencesthere arose new concepts, such as those of the protection of the public and the reform of the offender. Common law and code law Important differences exist between the criminal law of most English-speaking countries and that of other countries.
The criminal law of England and the United States derives from the traditional English common law of crimes and has its origins in the judicial decisions embodied in reports of decided cases.
England has consistently rejected all efforts toward comprehensive legislative codification of its criminal law; even now there is no statutory definition of murder in English law. Some Commonwealth countries, however, notably India, have enacted criminal codes that are based on the English common law of crimes. The criminal law of the United States, derived from the English common law, has been adapted in some respects to American conditions.
In the majority of the U. The effect of such actions is that no person may be tried for any offense that is not specified in the statutory law of the state. But even in these states the common-law principles continue to exert influence, because the criminal statutes are often simply codifications of the common law, and their provisions are interpreted by reference to the common law. In the remaining states prosecutions for common-law offenses not specified in statutes do sometimes occur.
In a few states and in the federal criminal code, the so-called penal, or criminal, codes are simply collections of individual provisions with little effort made to relate the parts to the whole or to define or implement any theory of control by penal measures.
In western Europe the criminal law of modern times has emerged from various codifications. The latter constituted the leading model for European criminal legislation throughout the first half of the 19th century, after which, although its influence in Europe waned, it continued to play an important role in the legislation of certain Latin American and Middle Eastern countries.
The German codes of penal code and procedure provided the models for other European countries and have had significant influence in Japan and South Koreaalthough after World War II the U. The Italian codes of represent one of the most technically developed legislative efforts in the modern period.
English criminal law has strongly influenced the law of Israel and that of the English-speaking African states. French criminal law has predominated in the French-speaking African states. Italian criminal law and theory have been influential in Latin America. Since the midth century the movement for codification and law reform has made considerable progress everywhere.
England enacted several important reform laws including those on theftsexual offenses, and homicideas well as modern legislation on imprisonment, probationsuspended sentences, and community service. Sweden enacted a new, strongly progressive penal code in In Germany a criminal code was adopted in following the reunification of East and West Germany. In a new criminal code came into force in Austria.
New criminal codes were also published in Portugal and Brazil France enacted important reform laws in,andas did Italy in and Spain in The republics formerly under the control of the Soviet Union also have actively revised their criminal codes, including HungaryBulgariaUzbekistanRussiaPolandKazakhstanUkraineand Romania Comparisons between the systems of penal law developed in the western European countries, and those having their historical origins in the English common law must be stated cautiously.
Substantial variations exist even among the nations that adhere generally to the Anglo-American system or to the law derived from the French, Italian, and German codes. In many respects, however, the similarities of the criminal law in all states are more important than the differences.
Certain forms of behaviour are everywhere condemned by law. In matters of mitigation and justification, the continental law tends to be more explicit and articulate than the Anglo-American law, although modern legislation in countries adhering to the latter has reduced these differences. Contrasts can be drawn between the procedures of the two systems, yet even here there is a common effort to provide fair proceedings for the accused and protection for basic social interests.
Substantive criminal law Substantive criminal law is composed of the following elements: The definition of criminal conduct Legality The principle of legality is recognized in almost all legal systems throughout the world as the keystone of the criminal law. It is employed in four senses. The first is that there can be no crime without a rule of law; thus, immoral or antisocial conduct not forbidden and punished by law is not criminal. Second, the principle of legality directs that criminal statutes be interpreted strictly and that they not be applied by analogical extension.
If a criminal statute is ambiguous in its meaning or application, it is often given a narrow interpretation favourable to the accused.
This does not mean that the law must be interpreted literally if to do so would defeat the clear purpose of the statute. The Model Penal Code incorporates a provision that was enacted in some U. Third, the principle of legality forbids the application of the law retroactively. In order that a person may be convicted, a law must have been in effect at the time the act was committed. This aspect of the principle is embodied in the ex post facto provisions of the U.
Constitution and such international treaties as the European Convention for the Protection of Human Rights and Fundamental Freedoms adopted and the International Covenant on Civil and Political Rights entered into force Fourth, the language of criminal statutes must be as clear and unambiguous as possible in order to provide fair warning to the potential lawbreaker. In some countries statutes may even be considered inapplicable if they are vague. Protection against double jeopardy Legal systems generally include some restriction against prosecuting a person more than once for the same offense.
It is held that acquittal or conviction of an offense prohibits subsequent prosecution of a lesser offense that was included in the first.
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According to the U. Supreme Court in Blockburger v. United States, U. A problem under the federal system of the United States is whether an offender may be prosecuted under both state and federal law for the same conduct the specific offenses being different. A number of state laws have prohibited state prosecutions after acquittals or convictions in a federal court or in the court of another state for offenses involving the same conduct.
Supreme Court has held that such multiple prosecutions by separate sovereigns are not prohibited by the double jeopardy clause of the Fifth Amendment to the U. Statutes of limitation All systems of law have statutes restricting the time within which legal proceedings may be brought. The permanent Criminal Law Revision Committee, established ineventually made a variety of specific recommendations, including the elimination of the distinction between felonies and misdemeanours.
In addition, the Law Commission, also a permanent body, was established in with the goal of continually reviewing the entire law, not just the criminal law.
In the commission undertook a new attempt at codification of the criminal law, and a draft code was published in However, it was severely criticized, and the commission dropped the attempt and instead produced a series of more-specific recommendations. Criminal-law reform was one of the interests of the U. In the early s, a comprehensive draft code was prepared for Louisiana, though it was never enacted.
Theories of Criminal Law
Other states also moved to codify their criminal laws. New York enacted a criminal code insetting an example that was eventually followed by most of the states. Because American criminal law is primarily a matter for the individual states in contrast to Canada, for example, where the national Parliament enacts the criminal code for the whole countrythere has been considerable variation in the content of the code from one state to another.
In the midth century, reform efforts in the United States led to the publication of the Model Penal Codean attempt to rationalize the criminal law by establishing a logical framework for defining offenses and a consistent body of general principles on such matters as criminal intent and the liability of accomplices. The Model Penal Code had a profound influence on the revision of many individual state codes over the following decades; although never enacted completely, it inspired a long period of criminal-code reform.
Civil law Whereas the criminal legal systems of most English-speaking countries are based on English common law, those of most European and Latin American countries, as well as many countries in Africa and Asia, are based on civil law. The civil-law tradition originated in the Law of the Twelve Tables — bca legal code that was posted in the Roman Forum.
- What Is the Difference Between Criminal Law and Civil Law?
- Criminal Law
In civil law the legislatureas the representative of the public, is viewed as the only valid source of law. It attempts to provide a complete, detailed, and written legal code that is understandable to the common citizen and applies in virtually all situations.
Therefore, legal codes in civil-law countries tend to be much lengthier than those in common-law countries, if indeed those countries have them at all. The typical pattern in civil law includes a definition of an offense, various relevant legal principles, and a list of specific applications of the law and specific exceptions. Judges are expected to apply the law as it is written and generally are prohibited from engaging in the type of interpretation that regularly occurs in common-law systems.
Owing to the central role of the legislature in developing the legal code, civil-law systems also generally lack the type of judicial review that in common-law countries results in what is called case law i. Islamic law Countries with majority Muslim populations have adopted diverse legal systems. Those that were once English colonies e.
Laws do not originate from secular sources, such as kings or legislatures. For example, apostasy requires a death sentenceextramarital sexual relations require death by stoning, and consuming alcoholic beverages requires 80 lashes.
Africa Criminal offenses in most modern African countries are defined in criminal or penal codes, a radical departure from the uncodified English criminal law on which many of these codes are based. Because of their origins, these codes generally reflect the penal assumptions of the original colonial power. The main concessions to local African values or problems are the inclusion of legislation against various customary practices, notably witchcraft; the extension of the criminal law in states with planned economies to cover economic crimes against the state; and, as a consequence of the soaring rate of some kinds of crime, special provision for certain offenses e.
Special tribunals, not subject to the ordinary rules of procedure, have been established in many African countries to deal with such offenses. Sierra Leone retained a greater role for traditional, or customary, law than most other African countries.
Customary law is enforced in separate courts in which the judges are politically appointed tribal elders. Nigeria established a tripartite system of criminal law and criminal justice. In Zambialocal criminal courts handle the more-serious criminal cases, while customary courts handle most civil cases and less-serious criminal cases.
In Ugandain addition to formal criminal courts, customary courts are authorized to hear civil cases and criminal cases involving children, but in rural areas they often hear the entire range of criminal cases, including murder homicide and rape. In Zimbabwethe Customary Law and Local Courts Act of created a single court system that hears both civil law and customary law cases at all levels of the judiciary, including that of the Supreme Court. China For thousands of years, China tended to avoid formal law, instead basing social control on informal customary codes of behaviour, many of which were derived from the teachings of Confucius — bc.
That suspicion culminated in the Cultural Revolution —76during which formal legal institutions largely disintegrated or were destroyed.