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Comparative Criminal Law

Universitat de Lleida 2011

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)
• (^) Imperialist approach to CCL: Superiority of German substantive CL as a matter of scientific progress

Legal traditions

• (^) Common law systems: USA, United Kingdom, Ireland, Canada, Australia, New Zealand, India and former British colonies
• (^) Civil law systems (continental or roman- Germanic law): it is the most prevalent: rest of EU, Japan and Latin America
• (^) Islamic systems (muslim justice)
• (^) Socialist systems: China, Cuba

Common Law / Civil 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

Islamic systems

• (^) The Koran is the first source of Law
• (^) Theocracies: legal rule and religious rule go together
• (^) Based on a concept of natural justice: crimes considered acts that offend religion
• (^) Islamic law ( Sharia, the path to follow ) supplemented by interpretation of Koran, analogical reasoning and consensus of legal scholars
• (^) Islamic Law is in some countries coexisting with civil law or common law

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

Other European Penal Codes

• (^) Germany: Penal Code of the Reich 1871. Reform of 1933. Reform of 1962/1975.
• (^) Italy: Codice Zanardelli 1889 and Codice Rocco 1930.
• (^) Sweden: PC 1864 / PC 1965 /reform 1988
• (^) Netherlands: 1811 French PC / PC1881 /

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
• (^) 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 Special part: specific offense definitions
• (^) Law of sanctions and execution
• Criminal procedure

Punishment Theory

• (^) Rationales of punishment: Retribution General deterrence Positive general prevention Special deterrence Rehabilitation Incapacitation Reparation / Restoration

Victims

• (^) Rediscovery of victims’ needs and victim’s rights
• (^) In USA assotiated with punitive demands, incapacitation and law and order
• (^) In other countries: less punitive approach. Victim assistance, restorative justice and victim-offender mediation programs

Principle of Legality

• (^) US law: PL vaguely associated with the prohibition of ex post facto (not only criminal laws) and vague criminal laws (the latter, derived from the general due process guarantee)
• (^) Continental CL: Nullum crimen nulla poena sine lege. Judges don’t make law, but merely apply it. Prohibition of analogy
• (^) A-A CL: Judicial criminal lawmaking not abolished, but faded away. Emerging Statutory law (UK). Sentencing guidelines (USA)
• (^) Continental CL: Broad place to interpretation of law. Authority of CL science: sophisticated intellectual creation of unelected experts or guarantee of rationality of the decision?

…Legality

• (^) Procedural dimension: discretionary power of prosecution (A-A CL) v. necessity of prosecution (exception, appropiateness principle). Guidelines: a soft control.
• (^) Prohibition of retroactivity is a common feature in both legal systems.