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Post No.: 0172criminal


Furrywisepuppy says:


Every sovereign country’s own laws are somewhat individual thus trying to generalise legal topics comes with this caveat. Nevertheless, there are some patterns across major parts of the world because of how legal systems have historically evolved over time via colonisation or simply cultural imitation…


Criminal law relates to public law offences, or basically crimes. Criminal law involves the fine and often difficult balancing act between protecting the public from harm and protecting the freedoms and liberty of the public.


‘Common law’ or ‘case law’ is law based upon the legal authority of precedents made by judges sitting in courts or tribunals (i.e. case law is primary e.g. England and USA). Meanwhile, ‘civil law’ or ‘civilian law’ is law based upon referring to a set of codified (written) laws or core principles, and affords judges far less freedom in how to interpret and apply the law (i.e. statutory law is primary e.g. most European countries). Common law mainly originated from English law, whereas civil law mainly originated from continental Europe. (Note that, rather confusingly, in some places ‘civil law’ can also refer to non-criminal law, as in the branch of the law that concerns civil matters/wrongs. I think this should really be referred to as Tort law to avoid any confusion (Tort law will be covered in a later post).)


So ‘statutory law’ or ‘statute law’ is law codified as ‘Acts of Parliament’ by the lower and upper houses of parliament (legislature). Different areas of jurisdiction often employ a combination of both judge-made law and codified law, such as in England and Wales; although England and Wales is mostly considered to have a common law system. (An aside to bear in mind is that Scotland and Northern Ireland do not have identical legal systems to England and Wales.)


Although not inherently related to whether a country uses a common law or civil law system – an ‘adversarial legal system’ (e.g. England and USA) is a system where the court plays the role of an impartial referee between prosecution and defence, and an ‘inquisitorial/non-adversarial legal system’ (e.g. most European countries) is a system where the court is actively involved in investigating the facts of a case.


In Criminal law, there is the ‘actus reus’ (a guilty act, which includes anything that wasn’t a mere mental idea, hence e.g. procuring bomb-making materials is a criminal act itself even if no bomb detonates, or threatening someone even though you haven’t hit them yet is potentially considered a crime), along with the ‘mens rea’ (a guilty mind e.g. a bad intention, carelessness or recklessness). The onus is on the prosecution (the party who raised the allegations) to prove beyond reasonable doubt that the defendant (the party who is accused of said allegations) performed the guilty act with a guilty mind. It is not down to the accused to prove his/her own innocence! On paper at least, people are presumed innocent until proven guilty. (This unfortunately isn’t always how the media presents people though.)


A diminished mens rea may be a mitigating factor that results in a lighter sentence even if someone was determined to have committed a guilty act. Not all crimes require a mens rea at all though – for example, absolute liability offences (which allow one no defence if the guilty act has been proven to have occurred hence ignorance is absolutely zero defence for these types of offences), or strict liability offences (which allow one to offer some defence if one was labouring under a mistake of fact i.e. some kind of genuine misunderstanding that led to an illegal act). These crimes tend to be low-level crimes with fines or bans instead of prison sentences though, and this helps to alleviate the load on the court system (imagine if every parking or speeding offence went to court!)


But even though this has practical benefits – is it fair for some offences to be automatic even though one didn’t know one was committing an offence? Well one could argue that if ignorance can be routinely used as a successful defence then it would incentivise ignorance in society. Why should those who put in the effort to learn the law – such as understanding that, in some countries, it’s actually a crime to cycle on the pavement/sidewalk (although the police barely ever prosecute anyone they find doing so) or it’s a civil wrong to reach into someone’s garden to pick a ripe apple from a tree – be punished for knowing the law compared to someone who uses a defence of, “Oh I didn’t know what I was doing was wrong”? Is an ignorant society the sort of society we want?! Probably not.


The standard of proof of ‘beyond reasonable doubt’ is one main feature that differentiates Criminal law from Tort law (law regarding civil wrongs rather than crimes). It’s a much higher standard than satisfying ‘the balance of probabilities’, which is the standard used in Tort law. This is because someone could potentially go to jail for a very long time if found guilty for a criminal offence, hence the higher standard required for proving guilt. People are therefore judged to be ‘not guilty’ rather than ‘innocent’ in criminal cases because of this high standard of proof required in order to convict someone.


This differing standard of proof is also why you may sometimes find criminal cases that fail to put a defendant in jail then become entered as civil cases that win damages for the plaintiff (e.g. rape cases). This is an example of how the world becomes more understandable the more one, well, becomes educated; and as a result there is less cause to feel confused or angry when presented with outcomes that seem bizarre, or to resort to conspiracy theories or ‘common sense’, which is after all merely ‘common’ rather than ‘advanced’ or ‘expert’. I reckon everyone needs to be far better educated before being allowed to be obstinately vocal or angry. Woof!


Along with capital punishment (death sentences), there’s no evidence that longer jail sentences deter crimes. But there are many reasons for why jail sentences are nonetheless used, and one of those reasons is not rehabilitation or deterrence – it could be to simply incapacitate an individual while they’re in jail so that the rest of society feels safer in the meantime. Mandatory or fixed sentencing, regardless of the nuances of a particular crime’s circumstances, can rob the system from applying more tailored sentencing to individual cases though.


Overall, the purposes of criminal punishment (of any form) may be for retribution (people paying for their crimes), deterrence (discouraging people from re-offending as well as to send a wider message that deters others in society from committing the same acts), rehabilitation (helping change people so that they will hopefully not commit crimes again), restoration (helping the victims and repairing relationships and the community), incapacitation (simply removing people from society in order to protect the rest of society) and/or denunciation (setting and maintaining a desirable set of standards for social behaviour). For a deeper investigation into what good does punishing people do – please read Post No.: 0136.


Sometimes politicians want to be seen to be doing something after receiving pressure from the public and media in the aftermath of some terrible injustice, so they introduce a new law. But often these just complicate the law and make the legal process more expensive and cumbersome because laws already existed that covered the issue but more broadly. A lot of politics (and work life in general when people are only being loosely watched over) is about being seen to be doing something without actually having done anything! Then again, politicians will often be criticised if they actually do introduce meaningful laws. You can never please all of the people all of the time.


People can often misunderstand the law because of their own or other people’s experiences. For example, many people believe that ‘it’s legal to drive 10% above the stated speed limit’, but speeding just 1mph or 1kph over the speed limit is technically an offence because speeding is an absolute liability offence. However in practice, police officers allow a bit of leeway (just like when spotting people cycling on the pavement/sidewalk) – it will depend on the jurisdiction but it’s doubtful that it’s codified into law that a ‘10% leeway’ is permitted. Vehicle speedometers and speed guns vary in accuracy though so it’s sensible to allow a bit of tolerance. Nonetheless, this shows that law enforcement isn’t always inflexible or draconian; although one may argue that lax law enforcement isn’t desirable for it encourages chancers, and it’s quite arbitrary what or for whom enforcement is relatively lax about or for and what or for whom it’s not (e.g. racial biases in stop and searches).


Private law involves cases brought by an individual, business or group against another individual, business, group, or even possibly against the state in some jurisdictions. Public law involves cases brought by the state against an individual, business or group. Criminal law is an area of public law. Without enforced private laws (such as contract laws), economies would basically crumble, as they do in failed states that lack an effective government to enforce the agreements made between private parties. And without enforced public laws (such as criminal laws), it’d likely turn into the Lord of the Flies or like a wild, lawless frontier where anything goes and no one feels safe except for the most powerful members or groups.


Individual laws may change over time, but the overall cultural meme of ‘laws’ evolved and overall successfully survives around the world for strong reasons due to their fitness as a cultural invention and tool in our civilisations. One will find it difficult or impossible to imagine a large, harmonious human civilisation that does not have enforced laws and regulations. Maybe they’d ironically not be needed if individuals had absolute zero autonomy (like tabletop miniatures where only you, as their god or puppet master, can move and control them however you like) because then no one could ever commit a harmful act (well unless you, as their god or puppet master, made them do it – but that’d therefore be completely your own fault)! But we don’t want that sort of world(!)


Basically, we wouldn’t need laws or enforcement if everyone behaved as we’d like; albeit what ‘we’d like’ is where the contentions lay, including if one believes in no or little interference (i.e. laws that protect freedoms and privacy). So it’s best to learn to embrace them, learn about them, learn how they’re made, and learn how you can get involved in shaping them where you are.




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