Chapter 1 The Nature and History of Criminal Law.

Chapter 1The Nature and History of Criminal Law

Criminal Law Today, 4/eFrank Schmalleger, Danielle E. Hall, John Dolatowski

© 2010, 2006, 2002, 1999 Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights Reserved.2

OBJECTIVES

After reading this chapter, you should be able to:• Define criminal law from the perspective of this text, and explain the

significance of each of the definition’s components.• Trace the development of criminal law in Western society.• Describe the role of common law in modern criminal law, and explain the

differences between procedural and substantive criminal law.• Identify the purposes served by the criminal law.• Identify the various sources of criminal law, including the principle of star

decisis.• Describe the legal system in the United States today, and explain the

differences between an adversarial and an inquisitorial system of prosecution.

• Expound upon the “rule of law” and explain why due process is an integral part of the rule of law.



WHAT IS CRIMINAL LAW?

• Black’s Law Dictionary, an authoritative source on legal terminology, defines the word law as follows: “that which is laid down, ordained, or established . . . a body of rules of action or conduct prescribed by controlling authority, and having binding legal force.”



WHAT IS CRIMINAL LAW?

FIGURE 1–1 Crime,Deviance, and Norm Violation. Although there are many ways rules can be violated, only a select few offenses are actually “criminal” acts.



HISTORICAL AND PHILOSOPHICAL PERSPECTIVES

• Laws in the United States have been shaped by a number of historical developments and philosophical perspectives.

• Criminal law, in particular, has been greatly influenced by natural law theories.




• Natural and Positive Law– Natural law dates back to the Greek philosopher Aristotle. – Adherents believe that some laws are fundamental to

human nature and discoverable by human reason, intuition, or inspiration, without the need to refer to man-made laws.

– Such people believe that an intuitive and rational basis for many of our criminal laws can be found in immutable moral principles or some identifiable aspects of the natural order.

– A contrasting construct is positive law, which is simply the law that is enforced by the government.




• History of Western Law– Just as philosophical perspectives have

contributed to the modern legal system in the United States, so have many ancient forms of law.

– Consequently, our laws today reflect many of the principles developed by legal thinkers throughout history.

– Ancient Laws– Civil and Common Law Traditions



COMMON LAW

• Before the Norman conquest of 1066, most law in England was local. – It was created by lords and applied within their realms. – Accordingly, law was decentralized and varying.

• When William the Conqueror invaded England in 1066, he declared Saxon law absolute and announced that he was “the guardian of the laws of Edward,” his English predecessor. – William, however, in seeking to add uniformity to the law,

planted legal seeds that would grow and eventually merge into one common law.



COMMON LAW

• He established courts that would be hierarchical and have national jurisdiction.

• The decisions of the highest court, Kings Court, were binding all across England. – Over time, these courts developed their own

processes and rules.

• One such development was the doctrine of stare decisis.



COMMON LAW

• Common law– Law originating from use and custom rather than

from written statutes.– The term refers to nonstatutory customs,

traditions, and precedents that help guide judicial decision making.



COMMON LAW

FIGURE 1–2 A Timeline of Developments in the Law.



COMMON LAW

TABLE 1–1 Civil and Common Law Legal Traditions Compared



COMMON LAWCivil Law Distinguished

• While criminal law concerns the government’s decision to prohibit and punish conduct, civil law (not to be confused with the civil law legal tradition) governs relationships between private parties.

• Civil codes regulate private relationships of all sorts, including marriages, divorces, and many other forms of personal and business relationships, such as inheritance and adoption.

• Civil actions come in many varieties, including breach of contract, domestic, and tort.



COMMON LAWCivil Law Distinguished

• A tort is – “the unlawful violation of a private legal right other

than a mere breach of contract, express or implied. A tort may also be the violation of a public duty if, as a result of the violation, some special damage accrues to the individual.”

• An individual, business, or other legally recognized entity that commits a tort is called a tortfeasor.



COMMON LAWCriminal Procedure Distinguished

• While substantive criminal law defines what conduct is criminal, criminal procedure defines the processes that may be used by law enforcement, prosecutors, victims, and courts to investigate and adjudicate criminal cases.

• As an academic field, criminal procedure also includes the study of the Constitution’s role in the process.



TYPES OF CRIMES

• There are many different ways to classify crimes. • One way is to distinguish crimes by their

seriousness. • It is common, for example, to distinguish between

felonies, misdemeanors, and infractions.– Hence felonies are thought of as serious crimes that are

punishable by at least a year in prison. – Misdemeanors are less serious offenses, generally

thought of as punishable by less than a year’s incarceration



TYPES OF CRIMES

FIGURE 1–3 Common Punishments for Criminal Acts.



THE PURPOSE OF CRIMINAL LAW

• Like laws in general, the criminal law has a variety of purposes.

• Some say that the primary purpose of the criminal law is to – “make society safe for its members, and to punish and

rehabilitate those who commit offenses.”

• Others contend that the basic purpose of the criminal law is – “to declare public disapproval of an offender’s conduct by

means of public trial and conviction and to punish the offender by imposing a penal sanction.”



THE PURPOSE OF CRIMINAL LAW

• A more complete list shows that criminal law functions to:– Protect members of the public from harm– Preserve and maintain social order– Support fundamental social values– Distinguish criminal wrongs from civil wrongs– Express communal condemnation of criminal behavior– Deter people from criminal activity– Stipulate the degree of seriousness of criminal conduct– Establish criteria for the clear determination of guilt or innocence at

trial– Punish those who commit crimes– Rehabilitate offenders– Assuage victims of crime



SOURCES OF CRIMINAL LAWConstitutions

• The highest form of law in the United States is the Constitution of the United States. – The Constitution, however, is not a source of specific laws or criminal

prohibitions (although it does define treason as a crime). – Instead it serves as a constraint on the police power of the

government.

• The Constitution sets limits on the nature and extent of criminal law that the government can enact. – It guards personal liberties by restricting undue government

interference in the lives of individuals and by implicitly ensuring personal privacy.

– The Bill of Rights contains most of the Constitution’s limits on the authority of the government to regulate people.




• The Constitution imposes a number of specific requirements and restrictions on both the state and federal governments, and it protects individual rights in the area of criminal law. They include:– Limits on the government’s police power– Limits on strict liability crimes– Protection against ex post facto laws– Protection against laws that are vague and unclear– Protection of free thought and free speech– Protection of the right to keep and bear arms– Freedom of religion– Freedom of the press




– Freedom to assemble peaceably– Freedom from unfair deprivation of life, liberty, and property– Prohibitions against unreasonable searches and seizures– Protection against warrants issued without probable cause– Protection against double jeopardy in criminal proceedings– Protection against self-incrimination– Right to a speedy and public trial before an impartial jury– Right to be informed of the nature of the charges– Right to confront witnesses– Right to the assistance of defense counsel– Prohibition against excessive bail– Prohibition against excessive fines– Prohibition against cruel and unusual punishments– Guarantees of equal protection of the laws



SOURCES OF CRIMINAL LAW

• Statutes, Ordinances, and Regulations

• Common Law

• The Model Penal Code– A model code of criminal laws intended to

standardize general provisions of criminal liability, sentencing, defenses, and the definitions of specific crimes between and among the states. The Model Penal Code was developed by the American Law Institute.



THE MODERN U.S. LEGAL SYSTEM

• The U.S. Constitution establishes the basic architecture of American government.

• To avoid the centralization of power, the Framers designed a federal system of government.

• Unfortunately, however, when federalism is discussed, confusion frequently arises over use of the term federal government.



THE MODERN U.S. LEGAL SYSTEMFederalism

• Federalism refers to a system of government that has both local and national elements.

• This is contrasted with unitary systems, which have only one national or centralized government, although regional or local subunits may exist.– “A federal system of government is one in which two

governments have jurisdiction over the inhabitants.”

• Under federalism, a central government coexists with various state and local governments.



THE MODERN U.S. LEGAL SYSTEMSeparation of Powers

• Just as federalism’s horizontal division of authority prevents the centralization of power, so does the vertical separation of powers between the branches of government.

• The U.S. government and the governments of all the states are divided into three branches:– Legislative– Executive– Judicial



THE MODERN U.S. LEGAL SYSTEMAn Adversarial, Accusatorial Due Process System

• Like other common law nations, the United States employs an adversarial and accusatorial system.

• An adversarial, accusatorial system is like a contest in which the prosecution is pitted against the defense, in contrast to an inquisitorial system, which is more like an ongoing inquiry with both the prosecution and the defense seeking the truth.




TABLE 1–2 The Inquisitorial System versus the Adversarial System




TABLE 1–3 Standards of Proof Compared



THE RULE OF LAW

• The rule of law, sometimes also referred to as the supremacy of law, involves the belief that an orderly society must be governed by established principles and known codes that are applied uniformly and fairly to all of its members.

• Under the rule of law, no one is above the law, and those who enforce the law must abide by it.

• The rule of law has been called “the greatest political achievement of our culture,”



THE RULE OF LAW

• The American Bar Association (ABA) defines the rule of law to include the following:– Freedom from private lawlessness provided by the legal

system of a politically organized society– A relatively high degree of objectivity in the formulation of

legal norms and a like degree of evenhandedness in their application

– Legal ideas and juristic devices for the attainment of individual and group objectives within the bounds of ordered liberty

– Substantive and procedural limitations on governmental power in the interest of the individual for the enforcement of which there are appropriate legal institutions and machinery



SUMMARY

• Law is a body of rules of action or conduct prescribed by a controlling authority and having binding legal force.

• Laws derive from many different sources. The development of criminal law in the United States was strongly influenced by English common law. Central to common law is the principle of stare decisis, which demands that judges recognize precedents, or earlier decisions, in their rulings.

• While much contemporary criminal law can be found in the form of statutes or penal codes, the principle of stare decisis continues to influence the interpretation of written codes by the courts.



SUMMARY

• Criminal law is but one type of law. It can be distinguished from other forms of the law in that violations of the criminal law are considered to be offenses against the state, the community, and the public. Moreover, it is the power of the state that is brought to bear against criminal offenders when crimes are investigated, when suspected offenders are tried, and when those convicted of violating criminal statutes are punished.

• Criminal law defines crimes according to the nature of the proscribed conduct and distinguishes among crimes by degree of seriousness. Felonies are serious crimes for which offenders may be sentenced to lengthy prison terms or (for crimes like murder) may be put to death. Misdemeanors are less serious offenses for which offenders may be fined, placed on probation, or sentenced to brief terms of incarceration.



SUMMARY

• Two important forms of the criminal law are substantive and procedural. Substantive criminal law defines crimes and specifies punishments for violations of the law. Procedural criminal law specifies the methods to be used in enforcing substantive law.

• Another major category of the law is civil law. Civil laws regulate private relations among individuals, businesses, and other legal entities, such as corporations.

• All laws, including criminal and civil law, facilitate predictable social interaction and guarantee a relative degree of safety to members of society.

• Laws of all kinds can be used as tools to build a given vision of society, and laws are often the result of efforts by organized groups to have their interests and moral sense formally legislated.

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Chapter 1 The Nature and History of Criminal Law.

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