Comparative Analysis of Criminal Law Systems: Common Law vs. Civil Law vs. Islamic Law - P, Apuntes de Derecho Comparado

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Comparative Criminal Law

Universitat de Lleida 2012

Dr. Josep M. Tamarit

Comparative Law

• (^) Diachronic comparison: between different times (history of law)
• (^) Diatopic comparison: between different spaces (strictly Comparative Law)
• (^) To compare is a main methode to understand, to analyse, to value and to criticise. The existence of alternative rules suggest that the existing rule is not the only imaginable: alternatives are possible and even can be better.

First approaches

• (^) A.v. Feuerbach: Essay on Islamic law (1800).
  • Early attempt at legal anthropology
  • Enlightenment spirit
  • Interest in the exotic world of Muslim culture
  • Comparative method as part of his rejection of traditional natural law (deduction of principles of justice from reason alone)

Two Modes of CCL

1. Imperialist approach: Seeks to teach or to opress, but not to learn
   • Legal colonialism: Exportation of CC to colonies
   • New version: Superiority of German substantive CL as a matter of scientific progress
2. Multidirectional mode: Criminal Law of the USA: Comprehensive analysis of the general principles of CL in the various American states and federal jurisdictions as precedent of the Model Penal Code 1962 Comparation between different legal systems has still a short development. Lack of interest? Chauvinism? Parochalism? Lack of theoretical development? Sense of superiority? Language barriers?

Legal systems of the world: Civil law / Common law / Islamic / Civil and common law

Civil Law / Common Law

• (^) Parliamentary Law as the only source of Law
• (^) Rationalism
• (^) Rupture with the Ancien Régim (French Revolution)
• (^) Sophisticated conceptual elaboration
• Inquisitorial process: judicial power to find the truth - (^) Plurality of sources: Judge-made Law and Statutory Law - (^) Utilitarism - (^) Evolution without rupture - (^) Solving-problems argumentation - Adversarial process: fair competition and due process

“Common Law”: English Law

• (^) The main source is the common law
• (^) Statute law (criminal legislation): Offences against the person Act 1861, Criminal Justice Act 2003
• (^) Judge-made law, case-law, binding precedent (stare decisis). Courts
• (^) Prevalence of realist approach at a theoretical level. Distinction between “law in the books” and “law in action”: consider the interaction between the law itself and discretion in the criminal process

Continental Criminal Law: codification

• (^) Austrian Penal Code 1787
• (^) French Revolution: Declaration of rights of the man and of the citizen (1789)
• (^) Revolutionary Penal Code (1791)
• (^) Austrian Penal Code 1803
• (^) Penal Code of Napoleon 1810
• (^) Bavarian Penal Code 1813
• (^) First Spanish Penal Code 1822 / 1848
• (^) Portugal 1852

Codification trend of the ninetees

• (^) France: Code penal 1994
• (^) Portugal: Codigo penal 1990
• (^) Spain: Código penal 1995
• (^) European Eastern countries: Russian

Federation 1996 / Poland 1997 / Croatia

1997 / Slovenia 2008

Latin American countries

• (^) Spanish influence in first codification process (some of them still in force: PC Chile 1857)
• (^) Modern penal codes, inspired in German and Spanish doctrine and a comittment with international criminal law: Colombia 2000, El Salvador 1996, Argentina 1984, Peru 1991
• (^) North American influence in Procedural law reform towards adversarial system (Chile 2000, Colombia 2002)
• (^) A federal criminal system: Mexico. Penal Codes of the 32 States and a Federal PC that describes federal crimes.

Fields in CL

• Substantive criminal law:

General part: principles of liability and

general theory of crime

Special part: specific offense definitions

• Law of sanctions and execution: covers the

quantity and quality of sanctions inflicted

for violations of criminal norms

• Criminal procedure: deals with the norms

ruling the criminal process

Main topics in CCL

• (^) Punishment theory
• (^) Victims
• (^) Jurisdiction
• (^) Principle of Legality
• (^) General principles of liability
• (^) Elements of crime
• (^) Criminal sanctions

Jurisdiction

• (^) Anglo-American CL: Territorial Jurisdiction. Even in USA there is a dual sovereignty exception that renders the double jeopardy protection inapplicable (one act can be punished in two different States) (discretionary power to punish)
• (^) Continental CL: Admits easily nonterritorial jurisdiction: active personality, passive personality and (more exceptionally) universal jurisdiction

Victims

• (^) Rediscovery of victims’ needs and victim’s rights
• (^) In USA associated with punitive demands, incapacitation and law and order
• (^) In other countries: less punitive approach. Victim assistance, restorative justice and victim- offender mediation programs
• (^) We can find both orientations in the criminal policy and in the social and theoretical debate