Principles of Criminal Law
The traditional idea regarding criminal law is that criminal acts are honourably wrong. The purpose of criminal sanctions was to make the offender make retribution for harm caused and appease their moral guilt; punishment was expected to be apportioned in proportion to the magnitude of the crime. More recently rational and pragmatic views have predominated. Writers of the Enlightenment such as Cesare Beccaria in Italy, Montesquieu and Voltaire in France, Jeremy Bentham in Britain, and P.J.A. von Feuerbach in Germany considered the core purpose of criminal law to be the prevention of criminality. Along with development of the social sciences, there came new ideas, such as those of the protection of the public and reform of the offender. Such reasoning is seen in the West German criminal code of 1975, which provides that the court “has to consider the consequences of the sentence upon the future life of the offender in society”. In the United States, a Model Penal Code proposed by the American Law Institute in 1962 states that an objective of criminal law should be “to give fair warning of the nature of the conduct declared to constitute an offense” and “to promote the correction and rehabilitation of offenders.” Since that time there has been renewed interest in the concept of basic prevention, including both the deterrence of possible criminals and the stabilisation and strengthening of social norms.
Common Law and Code Law
Principal differences exist between the criminal law of most English-speaking countries and that of other countries. The criminal law of England and the U.S. is derived from the traditional English common law of crimes and has its origins in the judicial decisions embodied in reports of past cases. England has continuously toward comprehensive legislative codification of its criminal law; even now there is no statutory definition of homicide in English law. Some Commonwealth countries, however, notably India, have ratified criminal codes that are based on the English common law of crimes.
The criminal law of America, derived from the English common law, has been adapted in some respects to American conditions. In the majority of the U.S. states the common law of crimes has been abolished by legislation. The consequences of such statutes is that no-one is able 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 be influential, as the criminal statutes are often simply codifications of the common law, and their provisions are interpreted in 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 the so-called penal, or criminal, codes are simply collections of individual provisions with only small effort made to connect the parts to the whole or to define or implement any theory of control by penal measures.
In western Europe criminal law of recent times has come about from various codifications. Particularly the two Napoleonic codes, the Code d’Instruction Criminelle of 1808 and the Code Pénal of 1810. The latter constituted the leading model for European criminal legislation throughout the first part of the 19th century, after which, although its influence in Europe dwindled, it continued to play a significant part in the legislation of certain Latin-American and Middle Eastern countries. The German codes of 1871 (penal code) and 1877 (procedure) were the models for other European countries and had powerful influence in Japan and South Korea, although after World War II the U.S. laws of criminal procedure were the main influence in the latter countries. The Italian codes of 1930 represent one of the technically most developed legislative efforts in the modern period. English criminal law has particularly influenced the law of Israel and also 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.
In recent times the movement for codification and law reform has made considerable progress everywhere. The American Law Institute’s Model Penal Code caused a intensive reexamination of both federal and state criminal law, and new codes were put in place in most of the states. Britain has enacted several important reform laws (including those on theft, sexual offenses, and murder), as well as modern statutes on imprisonment, probation, suspended sentences, and community service. Sweden enacted a new strongly progressive penal code in 1962. In West Germany (Federal Republic of Germany) a revised version of the criminal code was published in 1975 and subsequently has been amended. In the same year a new criminal code came into force in Austria. New criminal codes have also come into force in Portugal (1982) and Brazil (1984). France enacted significant reform laws in 1958, 1970, 1975, and 1982, as did Italy in 1981 and Spain in 1983. Other reforms have been under way in Finland, The Netherlands, Belgium, Switzerland, and Japan. The Soviet Union’s constituent republics began enacting revised criminal codes in 1960, as did Czechoslovakia and Hungary (1961), East Germany (German Democratic Republic), Bulgaria, and Romania (1968), and Poland (1969). After Yugoslavia became a federal state in 1974, a number of local penal codes came into being in addition to the federal code of 1977.
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