Principles of Criminal Law

Principles of Criminal Law

Criminal law is the part of law that governs crimes and their sanctions. There is not a clear and not controversial definition of what crimes are. But we can say that crime is an offence, a violation of law. But not any violation of law is a crime. The second criterion of an action to be consider a crime is that it involves a punishment. There is not a universally accepted definition of crime under a substantial point of view. Crime is considered as a public wrong, and so is an offence against duties owed to society and that the society has the right and the duty to punish.

There is a distinction between:

• MALA IN SE: "natural crimes", behaviours considered crimes by everyone and in every jurisdiction (homicide, theft);
• MALA QUIA PROHIBITA: "artificial crimes", behaviours considered as crime just because they are declared as such by a particular legislation (speeding, gambling).

We generally use a formal notion of what is a crime. So crimes are these particular violations of law that the society decides to sanction. And crimes are punished with a criminal sanction. There is a strong connection between criminal law and the concept of legality.

Another key concept is that of punishment (criminal sanction) always involves the infliction of PAIN (flush and blood it deals with sufferance). The central idea is pain infliction, nowadays awe live in democratic countries so pain is not in the strict sense (abolishment of torture or physical harm beyond incarceration- capital punishment), the idea of pain inflicted has changed a lot. Some forms of criminal punishment are in MONEY form (still a way of pain infliction). The essence of punishment is inflicting a form of pain. Punishment as the infliction of some degree of suffering by the State as a reaction to the breaking of the law.

1. It must be for breaking the law as a response to a crime;
2. It must be of a person for breaking the law (personality of criminal liability);
3. It must involve a loss (=infliction of pain);
4. It must be inflicted by the state or a public authority: it is not a private sanction and it shows the vertical relationship between the State and the individual, not between the offender and the victim;
5. It is not compensative: does not look to compensate the victim but to punish;
6. A person must be presumed innocent.

Criminal law is a national law, it falls within the sovereignty of the state. There are many criminal laws all over the world, and all these are strictly intertwined with the laws of the states. The process of internationalization of criminal law starts with the international criminal law (ICL) that deals with genocide, the ICJ and so on, and goes on with the impact of supranational level on national criminal systems. The European Union law has a big impact on criminal law. Also Human Rights Law can have a big relationship with criminal law, this relation is dual: the rights of the victim can be violated, and if the state does not punish this violation the punishment can came from the European Court of Human Rights.

What is the function of the human rights court? It is not an Intra state court, individuals can present a case to the court for violations of human rights (difference with ICJ which is an intrastate court). - > there are other regional entities of human rights courts. I.e Inter - American Court of Human rights that works in virtue of the pag. 1American charter of Human rights also African Court of Human and People's rights) -> NOT criminal courts but they have an impact on national criminal courts, they deal with human rights.

This system can have a dual relationship with criminal law:

1. On the one hand the violation can relate to basic human rights of the victims of the crime, so some people are victims if they consider that under the national law system there was a violation (ex. Person vs state). Duty of the state to protect the victim through the punishment of the offenders -> Duty to criminalize.
2. The rights of the offender, because the rights of the person accused in the criminal law system are human rights as well, for example the right of free trial and also limitations to detention.

Theories of Punishment

Punishment is the strongest power of the State over individuals, but it requires justification and we need to find a limit to its expansion. There are 2 main possible approaches:

• Absolute theories: punishment is justified by itself because the perpetrator is guilty of the crime;
• Relative theories: punishment is justified in view of the purpose of preventing crimes.

A further distinction could be that between:

• RETRIBUTIVISM: also known as the theory of "jut desert"; then offender deserves to be punished because he committed the crime, this is an absolute theory cause the punishment I justified in itself. This could be also described as an overcoming of private vengeance. There are different variants of this theory:
  • Divine retribution: the person who commits crimes also violates a superior law offending God, who therefore delegates judges on earth to restore the divine justice;
  • Moral retribution: this was theorised by Kant, he said that punishment is a categorical imperative aimed at compensating the violations of an ethical principle caused by the crime;
  • Legal retribution: this was theorised by Hegel, he said that punishment aims at symbolically re-establish the violated legal order.

Arguments for Retribution

The arguments to explain retribution are:

• free will, the offender is responsible for freely choosing to do wrong;
• debt "pay-back", by committing the crime the offender owns a debt to society and he has to repay it through punishment;
• unfair advantage, punishment removes the unfair advantage that the criminal has taken on the rest of the society.

Implications of Retributivism

The implications of retributivism are:

• principle of personality of criminal liability: of we punish someone who deserves to be punished, we can punish only a person who committed the crime and who was blameworthy for it;
• principle of proportionality of the law: punishment should be proportionate to what the offender deserves.

Criticisms of Retributivism

Some criticism have raised against Retributivism:

1. The overlap between morality and law;
2. What is "just" (or proportionate) punishment?
3. In a moral perspective: what about compassion, forgiveness?

pag. 2This doctrine has been very much criticized mostly regarding MORALITY, this leads to an overlap between morality and law. On the one hadn't we can say that morality is subjective, there is no general consensus of hat the right thing is or the wrong is, so how can we say that it is just to punish per se because it can be very subjective, on the other side according to the principle of secularism is not duty of the state to say what is wrong or right. The purpose of the state is not the one to restore the balance between good and evil but just the one to ensure coexistence of society. Lastly, what is a proportional punishment? Also this may be very subjective, from a moral point of view. What about compassion, mercy, forgiveness? Retribution is a good theory but it cannot be the only justification for punishment.

• PREVENTIVE THEORIES: are the main relative theories. Punishment is justified in a view of a purpose. It is a forward looking approach we punish to avoid future crimes. It is a forward looking principle, it is divided in:
  • General prevention = punishment is a threat aimed at preventing all citizens from committing crimes;

General Prevention Scholars

Some scholars consider:

1. negative general prevention: the general deterrence as intimidation and is negative because wants to threat people;
2. positive general prevention: considering punishment as a way to teach people the values to follow so that they can spontaneously adapt to them, not to threaten them.

• Special prevention = punishment is aimed at preventing the wrongdoer from committing crimes again in the future.
  1. negative special prevention:
     1. Individual deterrence: threat someone so he does not commit it again because he is scared;
     2. incapacitation: has not to do with deterrence but with the prevention of dangerous people from committing crime again by neutralizing them in a physical way (put in prison).
  2. positive special prevention:
     1. Rehabilitation: Punishment is intended as a means to reform the criminal so that he becomes a good citizen and does not commit the crime in the future: the aim is the same but the way is different. He does not commit a crime because he has changed not because he is scared. Punishment should involve positive steps (not only incarceration): educational and training program.

Criticisms of Prevention Theories

There are some criticism to prevention:

1. Incapacitation: it can lead to indeterminate imprisonment (or disproportionate sentence) if the criminal is considered as a danger for society;
2. Individual deterrence: criminogenic effect of incarceration (see retro)
3. Rehabilitation: is it effective? Is it just to impose rehabilitation?
• UTILITARIANISM: the first who gave the systematic expression of utilitarianism were Bentham and Feuerbach. Bentham's essential idea was the one of principle of utility: the purpose of law is that of produce the greatest happiness to the greatest number of people, this means to provide benefit to the society. Punishment is considered evil in itself because is a form of pain, and so punishment can be justified as far as it promises to exclude a greater evil that is a crime. Punishment should be used as a means to an end, and the end is the protection of the community.

According to utilitarianism, human beings are rational individuals and so human behaviour are given from a sort of balance between pain and pleasure, all human beings like pleasure and dislike pain, pag. 3the same thing is done by criminals. The decision to commit a crime is determined by a balance of benefits and costs: punishment is a form of pain and if it he is greater of the pleasure that came from the crime it will deter the individual from committing it. The function of punishment is thus of deterrence. Utilitarianism influenced Modern Economic Model of Crime.

The distinction in deterrence is between general, when you punish a criminal because you are using this punishment as a message for the rest of the society, or (individual) specific, this occurs when you use the punishment in the way that the criminal will remember it in the future and not only as an example for the society.

According to the criticism of the criticism of Kant the human beings should not be instrumentalised for a preventive purpose, cause human being is an end in himself. This of Kant is generally known as a moral objection. Then we have the objections about the effectivity of the objectivity of the utilitarian system. For this is not true that if we increase punishments than there would be a great deterrentive effect. But it is not true that all human beings are governed by pleasure and pain, so in not every case deterrence will work.

Punishments have a role in educating citizens, to teach people the values to follow in the way that they can spontaneously adapt to them. Generally this theory is quite accepted,

When we think about special prevention there is the distinction between negative special prevention and positive special prevention. The first is about individual deterrence and incapacitation, while de second is about rehabilitation.

Rehabilitation means to reform the criminal so that he becomes a good citizen and does not commit other crimes in the future, punishments should involve positive steps such as educational and training programmes. This idea goes against the idea of self-determination of individuals.

Incapacitation can lead to indeterminate imprisonment if the criminal is considered as a danger for society.

Historical Schools of Thought

In the 19th century there were two main schools, both in Germany and Italy. In Germany we had the classical school against the progressive school. The difference between those is that for the first the punishment is justified by itself, while for the second it needs a purpose. And the same in Italy with the classical school against the positive school. The first was based on the idea of man that makes free choices, while the second say that the wrong act is a result of the social and cultural influences.

We can find synaesthesis of the ideas of the two schools because the penal code provides two different kinds of punishments: punitive sanctions, came from the idea of retribution, and security measures, can be applied after the commission of the crime to dangerous people.

We also have restorative justice, cause is not properly a theory of punishment but aims to restore the position of the victim and create a dialogue between the offender and the victim.

Polyfunctionality of Punishments

Functions of punishment in the different stages of the punitive power. there are different stages of punitive power:

• Threat: it's the first one, a stage in which the punishment is a threat by the law;
• sentencing phase: when punishment is inflicted by courts special prevention;
• enforcement phase: the penalty has to be executed. Special prevention.

The functions of punishment may vary according to these 3 different moments. Law introduces punishment basically to prevent citizens from breaking the law. General deterrence can play a role in these stages and in order to ensure the purpose of general deterrence it is necessary that punishment is inflicted and executed. If it didn't happen the threat of punishment contained in the law would lose significance.

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