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Why Are Criminal Laws Established

Understood in this way, (PI) assigns the burden of proof in criminal trials to those on the side of the accused. Many add that prosecutors of (D) must satisfy a particularly high standard of proof – they must dispel any reasonable doubt in order to obtain a conviction. While these points are widely accepted, they leave open a number of other questions about the scope and core principles of (IP). The following explanations concern only a few (for an overview, see Lippke 2016). Some find the general justification of the criminal law in a value that is neither relational nor essentially public. Consider avoiding harm or preventing moral misconduct. A number of authors invoke one or both values to justify the existence of criminal law (Feinberg 1987, 146-155; Alexander and Ferzan, 2009, p. 17; Simester and von Hirsch 2011, 29-30). Since there are undue harms (think sports injuries caused without criminal act) and harmless injustices (think botched conspiracies or undiscovered attempts), the above values do not always grow and decrease together. One possibility is that the criminal law`s preoccupation with injustice stems from its concern for harm: the criminal law should prevent injustice (e.g., conspiracy to violate) if and because it prevents harm (e.g., harm itself). Another possibility is that the criminal law`s concern for damages stems from its concern for injustice: the criminal law should prevent harm (e.g., bodily harm) if and because the harm was wrongly caused (e.g., by bodily harm) (Feinberg 1987, 151-155; Moore, 1997, pp. 647-649). A third possibility is that harm and injustice provide two independent sources of general justification (cf.

Tadros 2016, 162-166). Whatever the answer, this preventive value is impersonal in two respects: it is not based on a special relationship; And it is a value that, in principle, can be realized by each of us. The Sumerian people of present-day Iraq produced the first known example of a written set of criminal laws. Their code, created around 2100-2050 BC. J.-C., was the first to create a distinction between criminal and civil misconduct. Civil law regulates disputes between two or more private parties (modern examples are contractual disputes and divorce proceedings), while criminal law includes cases brought by the state or federal government against a person who has caused harm to another person or the general public in any way. The general justifications of criminal law, as set out in the last paragraphs, give rise to a number of criticisms. One objection is that they are too broad: much of moral misconduct—even much that creates secondary duties to suffer or protect—is not a matter of criminal law. Not helping your friend move because you`re lazy is a culpable mistake. But since failure is a private matter – to be resolved by the friends themselves – there is no reason for legislators to criminalize injustice (Duff 2014b; Husak 2014, 215-216).

There is certainly no reason for them to criminalize it when the friends are both citizens of another state and the failure occurs in the other jurisdiction (Duff 2016). The reasons for criminalization exist, as is often said, only where the legislator stands. And the mere fact that an injustice generates the above-mentioned secondary duties does not give the legislator the possibility of criminalizing it. A second question is whether (IP) has an impact on substantive criminal law. Some writers – and most courts – don`t think. They give (IP) a purely procedural interpretation (Roberts 2005; Lippke, 2016). However, it has been argued that all of these interpretations are implausiblely narrow (Tadros, 2007; 2014; Tomlin, 2013). Imagine that possessing information that could be useful to terrorists with the intent to commit terrorist acts is a criminal offence. Such intentions are often difficult to prove. Parliament could respond by shifting the burden of proof to D: it could argue that once the prosecution proves possession, it is for the question to prove no intent. Woolmington`s formulation suggests that this movement violates (PI).

Now imagine that a creative legislator simply removes the intent requirement from the law: it becomes criminal to possess information that could be useful to terrorists, regardless of the owner`s intentions. Assuming that the prosecution must prove each element of the revised crime, this step brings the law into conformity with a purely procedural (PI) element. Today, most authors – and most human rights treaties – consider (IP) an important right that protects criminal suspects from the state. Examples such as those above show that purely procedural interpretation has the following implications: legislators who offer less protection to suspects adapt better to the law. Not only is this counterintuitive, but it makes the law toothless in the face of legislative creativity (Tadros 2014). Some conclude that this is reason enough to reject the purely procedural principle (PI). Some authors look elsewhere for the specificity of criminal law. The peculiarity of criminal law is that it censors or publicly condemns. This expressive function is sometimes associated with criminal punishment (Husak 2008, 92-95). Since other legal organs sometimes punish, and because punishment usually – perhaps necessarily – expresses censorship (Feinberg 1970), the expressive function is at least partially shared. But the message that criminal law sends is not only sent in sentencing. It is broadcast at the same time that a criminal court renders a guilty verdict – declaring that (D) has been criminally convicted (Simester 2005, 33-36).

The social significance of the conviction is very different from that of the verdict that (D) is an injured party: the earlier judgment itself indicates that (D)`s behavior casts a bad light on (D). While additional details may lead to the same conclusion in the case of a civil judgment, such details are not required in the case of a criminal conviction. If this is true, the peculiarity of criminal law is not manifested in the fact that it provides for a sanction. It turns out that it consists (at least in part) in providing a technique for convicting wrongdoers that does not require us to punish for the sake of condemning. Many penal codes protect the physical integrity of the body. The crime of assault is traditionally understood as illegal touching, although this does not include the daily bumps and bumps that people tacitly accept due to their presence in a crowd. Creating fear of an impending battery is an attack and can also result in criminal liability. Non-consensual sex or rape is a particularly egregious form of assault. Early civilizations generally did not distinguish between civil and criminal law. The first written legal texts were written by the Sumerians. Around 2100-2050 BC, your-Nammu, the Neo-Sumerian king of your, issued a written law whose text was discovered: the Code of your-Nammu,[1] although an earlier codex of Urukagina of Lagash (2380-2360 BC) is also known.

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