Comparative Criminal Law Justice
Content
Comparative Criminal
Justice Systems
Dr. Mamdooh Abdelhameed
(Ph.D., J.D)
Professor of Police Science &
Law
1
Chapter 1
An International Perspective
2
An International Perspective
Why Study the Legal System of Other Countries?
Provincial Benefits of an International Perspective .
Universal Benefits of an International Perspective .
The Influence Of The Country’s Statue In Criminal Justice System.
Historical Approach
Political Approach
Economy Approach .
Social Approach .
Geographic Approach.
Demographics Approach ٍ
Transportation Approach.
Communications Approach.
Comparison through Classification and descriptive .
The Need for Classification .
Classification Strategies .
Descriptive strategies.
3
Why Study the Legal System of Other
Countries?
.
The study of criminal justice in other
countries has specific benefits for our
own justice system as well as for
international relations :1 ) Provincial Benefits of an
International Perspective
2 ) Universal Benefits of an
International Perspective
4
1 ) Provincial Benefits of an International
Perspective
Because an International Perspective is still new in
American Criminal Justice Curricula.
A comparative view allows us to understand better the
dimension of our own system.
An International Perspective can furnish ideas to improve
our system , a technique used in one country to combat
crime might be successfully adapted for use in another
country.
It is important to neighbor and multinational cooperation.
5
2 ) Universal Benefits of an International
Perspective
A global communications “ it is a small world ”.
In addition, an international perspective can suggest
ideas to improve our system.
The presence and persistence of cross-national
crimes
including
terrorism,
hijacking,
drug
smuggling, and organized crime networks demand a
cooperative international effort.
Such an effort is aided when citizens of different
countries are familiar with, and try to understand and
respect, the institutions and procedures of other
countries.
6
Approaches to an International Perspective
There are at least three ways to study
different criminal justice system :1) Historical Approach.
2) Political Approach.
3) Descriptive Approach.
7
1) Historical Approach.
What
mistakes and successes have
already occurred ?
What
do earlier experiences tell us
about the present?
How
can knowledge of past prepare us
for the future?
8
2) Political Approach.
How
does politics affect a nation’s
justice system?
How
does politics affect interaction
among nations?
How
is a country’s legal tradition
affected by politics?
9
3) Descriptive Approach.
How is country’s justice system supposed to
operate?
What are the main components of a justice
system?
Who are the main actors in a justice system?
10
The Influence Of The Country’s Statue In Criminal
Justice System
Political Statue ٍ
Economy Statue ٍ
Social Statue
Demographics
Statue ٍ
Geographic Statue ٍ
Transportation
Statue
Communications Statue
11
Demographics Statue
1) the Ethnic Groups .
2 ) Population:
Population growth rate.
Life expectancy at birth.
Nationality.
3 ) languages:
How many …..
12
Geographic Statue
Location
Weather or Climate
Terrain
Natural resources
13
Economy Statue
Labor force:
Labor force - by occupation:
Industries:
Industrial production growth rate:
Currency:
Exchange rates:
Fiscal year:
14
Political Statue
Government type:
Capital:
Administrative divisions:
Legal system:
Suffrage:
Legislative branch:
Judicial branch:
15
Communications Statue
Telephones
- main lines in use:
Telephones - mobile cellular:
Internet country code:
Internet Service Providers (ISPs):
Internet users:
16
Transportation Statue
Railways:
Highways:
Waterways:
Ports and harbors:
Airports:
Heliports:
17
Social statue
Customs and traditions.
Religion.
Literacy rate.
Poverty line.
18
Elements Of This Influence
1 - Hiring
2 - Working at some departments.
3 - Prevent some people from working at
criminal justice fields.
4 - Lower level jobs
5 - More interest in political crimes than
social crimes.
6 - Philosophy of police work .
7 - Police organization system ( Centralized or
decentralized ).
8 - Various criminal justice departments .
19
Chapter 2
Crime, Transnational Crime,
and Justice
20
Crime, Transnational Crime, and
Justice
How do domestic crime and transnational
crime differ?
What do comparative criminologists study?
What do comparative criminal justice
scholars study?
What are the main problems when comparing
crime data from two or more countries?
What are some examples of transnational
crime?
21
How do domestic crime and transnational
crime differ?
The
domestic crime and transnational
crime ,count assuming they were
reported and recorded .
Domestic
crime and transnational
crime provide the subject matter for the
field of study known as comparative
criminology.
22
COMPARATIVE CRIMINOLOGY AND CRIMINAL
JUSTICE
Comparative studies in crime and justice
cover two areas :First is the area of comparative
criminology for which interest is in the study
of crime as a social phenomenon (the focus
is more on the crime) and as social behavior
(the focus is more on the offender).
Second is comparative criminal justice
with its interest in determining how various
countries attempt to maintain social order
and accomplish justice.
23
however,
focuses on
criminology because :
comparative
1) a complete understanding of a county’s
criminal justice system must include an
appreciation of the country’s domestic
crime and criminals.
2) the phenomenon of transnational crime
propels much of today’s multinational
cooperation, it behooves comparative
criminal
justice
to
understand
transnational crime and criminals.
24
FRIST :
COMPARATIVE CRIMINOLOGY LOOKS AT
CRIME AS A SOCIAL PHENONMENON
When comparative criminologists study crime as a
social
phenomenon,
they
try
to
identify
commonalities and differences in crime patterns
among divergent cultures.
Criminologists seeking to compare crime in two or
more countries encounter two primary problems:
The first is to ensure that crime data from
different countries have been defined, reported, and
recorded in a similar manner.
The second is compiling crime data in a manner
that allows researchers to conveniently compare
many different countries.
25
Comparing Similar Data
1)
In the absence of a universally
agreed upon definitions of what
constitutes a particular crime.
there is always the chance that data
on a specific crime in two countries do
not actually compare similar acts.
26
2 ) Statistics are Political Statements
The open announcement of a country’s crime
statistics is often only after the information has been
rigorously checked for both its “validity” and for the
impression it creates.
At times, countries have made crime data
available to the United Nations survey but have not
provided that information to their own citizens.
27
3 ) Problems in Defining, Reporting, and
Recording :
Types of crime that seem comparable
are often not (e.g., comparisons of homicide
are confounded by how deaths from drunken
driving are recorded).
Many crimes are not reported to the
police.
Some events reported and recorded as
crimes may not actually be crimes, and some
crimes reported are never officially recorded.
Decisions to record crimes may be
affected by concerns about job evaluation
measures.
28
4 ) Comparison Problems
The structure and number of
police personnel varies among the
countries.
Whereas some countries
count crimes when the police
become aware of them, others
count crimes only when the police
forward them for prosecution.
29
5 ) Varying Social Features Affect Crime Rates:
Countries where telephones are more
common tend to report a higher proportion of crime.
Countries where household insurance is
more developed report a higher proportion of crime.
Countries where police forces use more
advanced technology tend to find a higher
proportion of actual crime.
Countries with more available medical
facilities may have lower homicide rates than
countries with less accessible medical facilities.
30
6
) In addition to the problems
presented by differences in legal
definitions of crime, cross-national
comparison of crime rates is hindered
by the way crime is reported in
countries.
31
7 ) The willingness of victims to report crime is
not the only factor affecting reporting rates.
Also important are factors such as accessibility
to police so a report can be made :
e.g.,
the number of police stations or telephones,
the level of insurance coverage available
the level of trust that the public has for its
police
the greater the difference in social, economic,
and political context between countries, it is to
make any comparison of their crime rates. For
example, different social norms.
32
The result of all of this
The
result of all of this is
that
crime
statistics
probably tell us as much
about a country’s justice
organization as about its
crime rate.
33
Using Data Sets to Facilitate Comparison
Several organizations are making available some key
statistics on crime and justice in countries around
the world.
Especially important data sets today are those
provided by :
Interpol,
the Council of Europe,
the United Nations Office on Drugs and Crime
(UNDOC),
and United Nations Interregional Crime and Justice
Research Institute (UNICRI).
the International Crime Victim Survey (ICVS),
sponsored by UNICRI.
34
Crime and victimization data
The crime and victimization data available to
comparative criminologists today provide a wealth of
information.
As long as the necessary methodological cautions
are understood and accounted for, scholars and
practitioners will be able to compare crime
occurrence, crime trends, victimizations, and other
topics of importance for a more complete
understanding of domestic crime.
As noted earlier, however, comparative criminology
is also interested in advancing theoretical
explanations of criminal behavior.
Crime and
victimization data are also necessary for that goal.
35
Second:
Comparative Criminology Looks at Crime
as Social Behavior
When looking at crime as social behavior,
criminologists develop and test theories about
crime’s etiology – that is, its causes, origins,
and distribution.
Traditionally, those theories have been used to
understand domestic crime in a particular
country.
When theories about crime are developed and
tested in or across two or more countries,
criminology is more accurately called
comparative criminology.
36
identify
three general frameworks
that are commonly employed as
comparative criminologists attempt
to explain the variation of crime
rates among nations:
grand theories,
structural theories,
theories relying on demographic
characteristics.
37
The crime and victim data sets are designed to
measure the occurrence and reporting of
criminal acts within a particular country.
Comparative criminologists then use that
information to identify similarities and
differences in crime types and occurrence
(i.e., crime as a social phenomenon) or to
extend our understanding of criminal behavior
(i.e., crime as social behavior).
The twenty-first century brought a new, nondomestic, type of crime to intrigue and
challenge criminologists. These transnational
crimes are not confined to national borders
but have impact across many nations.
38
Summary
Comparative criminology and comparative criminal justice are
separated fields of study with overlapping interests.
This article focuses on comparative criminal justice and
therefore it is especially interested in how the people and
agencies in different countries go about accomplishing justice.
All justice systems operate in the context of those activities
that a government has identified as criminal and those persons
who engage in that behavior.
Criminology, more so than criminal justice, studies those
crimes and criminals.
Because criminology and criminal
justice have some subject matter in common, it is appropriate
for this comparative criminal justice article to par some
attention to issues related to comparative criminology.
39
When comparative criminologists look at crime as a
social phenomenon, they are trying to identify similarities
and differences in crime patterns across countries.
They must be very careful when doing this because there
are no universally agreed upon ways to define, report,
and record crime.
However, with the cautious use of data sets that report
crime and victimization rates from many countries,
comparative criminologists are able to conduct research
that can advance theoretical explanations for criminal
behavior.
Examples of the explanations offered when comparative
criminologists look at crime as social behavior are those
categorized as grand theories.
40
Traditionally
comparative
criminologists
have studied domestic crime patterns and
behavior. The globalization of crime has
brought an increased interest in crime that
crosses national borders.
Comparative
criminologists
now
find
themselves studying such transnational
crimes as money laundering, piracy,
terrorism, and trafficking in persons.
41
Chapter 3
Perspective on Criminal Law
42
Perspective on Criminal Law
WHAT TO LOOK FOR:
How are substantive criminal law and procedural
criminal law different?
What are the general characteristics of the major
principles of substantive law?
How do the crime control model and the due process
model differ?
What impact has the war on terrorism had on issues
of safety and liberty?
43
ESSENTIAL INGREDIENTS OF JUSTICE
SYTEMS
Two problems need resolving before any society can
implement an institutionalized pattern of criminal
justice.:
1) the laws must be delineated.
2) the manner of enforcement must be specified.
The way a society revolves these problems involves
the essential ingredients of any legal system.
44
An
understanding of basic criminal law
concepts is important for appreciating
any country’s legal system.
The
two essential ingredients to any
justice system are substantive law and
procedural law.
45
The former concerns the definition of rules,
whereas the latter specifies their enforcement.
Substantive criminal law is made up of
general characteristics that allow identification
of some act as criminal and of major
principles that determine whether a particular
behavior is criminal.
Procedural criminal law is implemented
through wither a crime control model or a due
process mode
46
The Criminal Law
The Procedural Law
The Substantive Law
47
The Substantive Law
The
first condition, requirements to
qualify as a law, can be called the
general characteristics of law .
The
second condition, determining
whether a particular behavior is
criminal,
comprises
the
major
principles of law.
48
The Substantive Law
General Characteristics
Politically
•Specificity
•Uniformity
•Penal sanction
•
Major Principles
•mens
rea
•actus reus
•concurrence
•harm
•causation
•punishment
•legality
49
the Procedural Law
Just as we can analyze two aspects of the definition of
laws, we can also bifurcate the manner in which the
rules are implemented.
The rules can be activated to emphasize repressing
rule violation (crime control model) or to contain the
system’s level of intrusion in the citizen’s life (due
process model).
As Packer (1968) presents those two models, they are
less bound to specific legal systems than are the
characteristics and principles of criminal law.
Therefore, the comments that follow about procedural
law are applicable to a wider range of legal systems
than is the following analysis of substantive law.
50
the Procedural Law
Crime Control Model
Due Process Model
51
1) Crime Control Model
1 - Assumes freedom is so important that every effort
must be made to repress crime.
2 - Seeks to make decisions that will identify factual
guilt.
3 - Follows rules that emphasize the repression of
criminal activity.
4 - Emphasizes efficiency of action (i.e., speed and
finality).
5 - Requires a high rate of apprehension and
conviction by early exclusion of those not likely to by
guilty.
52
2) Due Process Model
1 - Assumes freedom is so important that every effort
must be made to ensure that government intrusion
follows legal procedure.
2 - Seeks to make decisions that will identify legal
guilt.
3 - Follows rules that emphasize containing the
government’s level of intrusion into citizens’ lives.
4 - Emphasizes legitimacy of action.
5 - Insists on a formal, adjudicative, adversarial factfinding process, even though such restraints may
keep the process from operating with maximal
efficiency.
53
Each model seeks to guarantee social freedom. One does so by
emphasizing efficient processing of wrongdoers, whereas the other
emphasizes effective restrictions on government invasion in the
citizen’s life.
The crime control model asks who is the greater threat to our
freedom, the criminal trying to harm us or our property?
The due process model answers that government agents such as
police officers and prosecutors are the threat.
Although each of these models seeks to ensure the social freedom
of citizens, they emphasize different, and often conflicting, ways to
achieve that goal.
54
Chapter 4
Legal Traditions
55
Justice Systems
Dr. Mamdooh Abdelhameed
(Ph.D., J.D)
Professor of Police Science &
Law
1
Chapter 1
An International Perspective
2
An International Perspective
Why Study the Legal System of Other Countries?
Provincial Benefits of an International Perspective .
Universal Benefits of an International Perspective .
The Influence Of The Country’s Statue In Criminal Justice System.
Historical Approach
Political Approach
Economy Approach .
Social Approach .
Geographic Approach.
Demographics Approach ٍ
Transportation Approach.
Communications Approach.
Comparison through Classification and descriptive .
The Need for Classification .
Classification Strategies .
Descriptive strategies.
3
Why Study the Legal System of Other
Countries?
.
The study of criminal justice in other
countries has specific benefits for our
own justice system as well as for
international relations :1 ) Provincial Benefits of an
International Perspective
2 ) Universal Benefits of an
International Perspective
4
1 ) Provincial Benefits of an International
Perspective
Because an International Perspective is still new in
American Criminal Justice Curricula.
A comparative view allows us to understand better the
dimension of our own system.
An International Perspective can furnish ideas to improve
our system , a technique used in one country to combat
crime might be successfully adapted for use in another
country.
It is important to neighbor and multinational cooperation.
5
2 ) Universal Benefits of an International
Perspective
A global communications “ it is a small world ”.
In addition, an international perspective can suggest
ideas to improve our system.
The presence and persistence of cross-national
crimes
including
terrorism,
hijacking,
drug
smuggling, and organized crime networks demand a
cooperative international effort.
Such an effort is aided when citizens of different
countries are familiar with, and try to understand and
respect, the institutions and procedures of other
countries.
6
Approaches to an International Perspective
There are at least three ways to study
different criminal justice system :1) Historical Approach.
2) Political Approach.
3) Descriptive Approach.
7
1) Historical Approach.
What
mistakes and successes have
already occurred ?
What
do earlier experiences tell us
about the present?
How
can knowledge of past prepare us
for the future?
8
2) Political Approach.
How
does politics affect a nation’s
justice system?
How
does politics affect interaction
among nations?
How
is a country’s legal tradition
affected by politics?
9
3) Descriptive Approach.
How is country’s justice system supposed to
operate?
What are the main components of a justice
system?
Who are the main actors in a justice system?
10
The Influence Of The Country’s Statue In Criminal
Justice System
Political Statue ٍ
Economy Statue ٍ
Social Statue
Demographics
Statue ٍ
Geographic Statue ٍ
Transportation
Statue
Communications Statue
11
Demographics Statue
1) the Ethnic Groups .
2 ) Population:
Population growth rate.
Life expectancy at birth.
Nationality.
3 ) languages:
How many …..
12
Geographic Statue
Location
Weather or Climate
Terrain
Natural resources
13
Economy Statue
Labor force:
Labor force - by occupation:
Industries:
Industrial production growth rate:
Currency:
Exchange rates:
Fiscal year:
14
Political Statue
Government type:
Capital:
Administrative divisions:
Legal system:
Suffrage:
Legislative branch:
Judicial branch:
15
Communications Statue
Telephones
- main lines in use:
Telephones - mobile cellular:
Internet country code:
Internet Service Providers (ISPs):
Internet users:
16
Transportation Statue
Railways:
Highways:
Waterways:
Ports and harbors:
Airports:
Heliports:
17
Social statue
Customs and traditions.
Religion.
Literacy rate.
Poverty line.
18
Elements Of This Influence
1 - Hiring
2 - Working at some departments.
3 - Prevent some people from working at
criminal justice fields.
4 - Lower level jobs
5 - More interest in political crimes than
social crimes.
6 - Philosophy of police work .
7 - Police organization system ( Centralized or
decentralized ).
8 - Various criminal justice departments .
19
Chapter 2
Crime, Transnational Crime,
and Justice
20
Crime, Transnational Crime, and
Justice
How do domestic crime and transnational
crime differ?
What do comparative criminologists study?
What do comparative criminal justice
scholars study?
What are the main problems when comparing
crime data from two or more countries?
What are some examples of transnational
crime?
21
How do domestic crime and transnational
crime differ?
The
domestic crime and transnational
crime ,count assuming they were
reported and recorded .
Domestic
crime and transnational
crime provide the subject matter for the
field of study known as comparative
criminology.
22
COMPARATIVE CRIMINOLOGY AND CRIMINAL
JUSTICE
Comparative studies in crime and justice
cover two areas :First is the area of comparative
criminology for which interest is in the study
of crime as a social phenomenon (the focus
is more on the crime) and as social behavior
(the focus is more on the offender).
Second is comparative criminal justice
with its interest in determining how various
countries attempt to maintain social order
and accomplish justice.
23
however,
focuses on
criminology because :
comparative
1) a complete understanding of a county’s
criminal justice system must include an
appreciation of the country’s domestic
crime and criminals.
2) the phenomenon of transnational crime
propels much of today’s multinational
cooperation, it behooves comparative
criminal
justice
to
understand
transnational crime and criminals.
24
FRIST :
COMPARATIVE CRIMINOLOGY LOOKS AT
CRIME AS A SOCIAL PHENONMENON
When comparative criminologists study crime as a
social
phenomenon,
they
try
to
identify
commonalities and differences in crime patterns
among divergent cultures.
Criminologists seeking to compare crime in two or
more countries encounter two primary problems:
The first is to ensure that crime data from
different countries have been defined, reported, and
recorded in a similar manner.
The second is compiling crime data in a manner
that allows researchers to conveniently compare
many different countries.
25
Comparing Similar Data
1)
In the absence of a universally
agreed upon definitions of what
constitutes a particular crime.
there is always the chance that data
on a specific crime in two countries do
not actually compare similar acts.
26
2 ) Statistics are Political Statements
The open announcement of a country’s crime
statistics is often only after the information has been
rigorously checked for both its “validity” and for the
impression it creates.
At times, countries have made crime data
available to the United Nations survey but have not
provided that information to their own citizens.
27
3 ) Problems in Defining, Reporting, and
Recording :
Types of crime that seem comparable
are often not (e.g., comparisons of homicide
are confounded by how deaths from drunken
driving are recorded).
Many crimes are not reported to the
police.
Some events reported and recorded as
crimes may not actually be crimes, and some
crimes reported are never officially recorded.
Decisions to record crimes may be
affected by concerns about job evaluation
measures.
28
4 ) Comparison Problems
The structure and number of
police personnel varies among the
countries.
Whereas some countries
count crimes when the police
become aware of them, others
count crimes only when the police
forward them for prosecution.
29
5 ) Varying Social Features Affect Crime Rates:
Countries where telephones are more
common tend to report a higher proportion of crime.
Countries where household insurance is
more developed report a higher proportion of crime.
Countries where police forces use more
advanced technology tend to find a higher
proportion of actual crime.
Countries with more available medical
facilities may have lower homicide rates than
countries with less accessible medical facilities.
30
6
) In addition to the problems
presented by differences in legal
definitions of crime, cross-national
comparison of crime rates is hindered
by the way crime is reported in
countries.
31
7 ) The willingness of victims to report crime is
not the only factor affecting reporting rates.
Also important are factors such as accessibility
to police so a report can be made :
e.g.,
the number of police stations or telephones,
the level of insurance coverage available
the level of trust that the public has for its
police
the greater the difference in social, economic,
and political context between countries, it is to
make any comparison of their crime rates. For
example, different social norms.
32
The result of all of this
The
result of all of this is
that
crime
statistics
probably tell us as much
about a country’s justice
organization as about its
crime rate.
33
Using Data Sets to Facilitate Comparison
Several organizations are making available some key
statistics on crime and justice in countries around
the world.
Especially important data sets today are those
provided by :
Interpol,
the Council of Europe,
the United Nations Office on Drugs and Crime
(UNDOC),
and United Nations Interregional Crime and Justice
Research Institute (UNICRI).
the International Crime Victim Survey (ICVS),
sponsored by UNICRI.
34
Crime and victimization data
The crime and victimization data available to
comparative criminologists today provide a wealth of
information.
As long as the necessary methodological cautions
are understood and accounted for, scholars and
practitioners will be able to compare crime
occurrence, crime trends, victimizations, and other
topics of importance for a more complete
understanding of domestic crime.
As noted earlier, however, comparative criminology
is also interested in advancing theoretical
explanations of criminal behavior.
Crime and
victimization data are also necessary for that goal.
35
Second:
Comparative Criminology Looks at Crime
as Social Behavior
When looking at crime as social behavior,
criminologists develop and test theories about
crime’s etiology – that is, its causes, origins,
and distribution.
Traditionally, those theories have been used to
understand domestic crime in a particular
country.
When theories about crime are developed and
tested in or across two or more countries,
criminology is more accurately called
comparative criminology.
36
identify
three general frameworks
that are commonly employed as
comparative criminologists attempt
to explain the variation of crime
rates among nations:
grand theories,
structural theories,
theories relying on demographic
characteristics.
37
The crime and victim data sets are designed to
measure the occurrence and reporting of
criminal acts within a particular country.
Comparative criminologists then use that
information to identify similarities and
differences in crime types and occurrence
(i.e., crime as a social phenomenon) or to
extend our understanding of criminal behavior
(i.e., crime as social behavior).
The twenty-first century brought a new, nondomestic, type of crime to intrigue and
challenge criminologists. These transnational
crimes are not confined to national borders
but have impact across many nations.
38
Summary
Comparative criminology and comparative criminal justice are
separated fields of study with overlapping interests.
This article focuses on comparative criminal justice and
therefore it is especially interested in how the people and
agencies in different countries go about accomplishing justice.
All justice systems operate in the context of those activities
that a government has identified as criminal and those persons
who engage in that behavior.
Criminology, more so than criminal justice, studies those
crimes and criminals.
Because criminology and criminal
justice have some subject matter in common, it is appropriate
for this comparative criminal justice article to par some
attention to issues related to comparative criminology.
39
When comparative criminologists look at crime as a
social phenomenon, they are trying to identify similarities
and differences in crime patterns across countries.
They must be very careful when doing this because there
are no universally agreed upon ways to define, report,
and record crime.
However, with the cautious use of data sets that report
crime and victimization rates from many countries,
comparative criminologists are able to conduct research
that can advance theoretical explanations for criminal
behavior.
Examples of the explanations offered when comparative
criminologists look at crime as social behavior are those
categorized as grand theories.
40
Traditionally
comparative
criminologists
have studied domestic crime patterns and
behavior. The globalization of crime has
brought an increased interest in crime that
crosses national borders.
Comparative
criminologists
now
find
themselves studying such transnational
crimes as money laundering, piracy,
terrorism, and trafficking in persons.
41
Chapter 3
Perspective on Criminal Law
42
Perspective on Criminal Law
WHAT TO LOOK FOR:
How are substantive criminal law and procedural
criminal law different?
What are the general characteristics of the major
principles of substantive law?
How do the crime control model and the due process
model differ?
What impact has the war on terrorism had on issues
of safety and liberty?
43
ESSENTIAL INGREDIENTS OF JUSTICE
SYTEMS
Two problems need resolving before any society can
implement an institutionalized pattern of criminal
justice.:
1) the laws must be delineated.
2) the manner of enforcement must be specified.
The way a society revolves these problems involves
the essential ingredients of any legal system.
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An
understanding of basic criminal law
concepts is important for appreciating
any country’s legal system.
The
two essential ingredients to any
justice system are substantive law and
procedural law.
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The former concerns the definition of rules,
whereas the latter specifies their enforcement.
Substantive criminal law is made up of
general characteristics that allow identification
of some act as criminal and of major
principles that determine whether a particular
behavior is criminal.
Procedural criminal law is implemented
through wither a crime control model or a due
process mode
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The Criminal Law
The Procedural Law
The Substantive Law
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The Substantive Law
The
first condition, requirements to
qualify as a law, can be called the
general characteristics of law .
The
second condition, determining
whether a particular behavior is
criminal,
comprises
the
major
principles of law.
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The Substantive Law
General Characteristics
Politically
•Specificity
•Uniformity
•Penal sanction
•
Major Principles
•mens
rea
•actus reus
•concurrence
•harm
•causation
•punishment
•legality
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the Procedural Law
Just as we can analyze two aspects of the definition of
laws, we can also bifurcate the manner in which the
rules are implemented.
The rules can be activated to emphasize repressing
rule violation (crime control model) or to contain the
system’s level of intrusion in the citizen’s life (due
process model).
As Packer (1968) presents those two models, they are
less bound to specific legal systems than are the
characteristics and principles of criminal law.
Therefore, the comments that follow about procedural
law are applicable to a wider range of legal systems
than is the following analysis of substantive law.
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the Procedural Law
Crime Control Model
Due Process Model
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1) Crime Control Model
1 - Assumes freedom is so important that every effort
must be made to repress crime.
2 - Seeks to make decisions that will identify factual
guilt.
3 - Follows rules that emphasize the repression of
criminal activity.
4 - Emphasizes efficiency of action (i.e., speed and
finality).
5 - Requires a high rate of apprehension and
conviction by early exclusion of those not likely to by
guilty.
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2) Due Process Model
1 - Assumes freedom is so important that every effort
must be made to ensure that government intrusion
follows legal procedure.
2 - Seeks to make decisions that will identify legal
guilt.
3 - Follows rules that emphasize containing the
government’s level of intrusion into citizens’ lives.
4 - Emphasizes legitimacy of action.
5 - Insists on a formal, adjudicative, adversarial factfinding process, even though such restraints may
keep the process from operating with maximal
efficiency.
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Each model seeks to guarantee social freedom. One does so by
emphasizing efficient processing of wrongdoers, whereas the other
emphasizes effective restrictions on government invasion in the
citizen’s life.
The crime control model asks who is the greater threat to our
freedom, the criminal trying to harm us or our property?
The due process model answers that government agents such as
police officers and prosecutors are the threat.
Although each of these models seeks to ensure the social freedom
of citizens, they emphasize different, and often conflicting, ways to
achieve that goal.
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Chapter 4
Legal Traditions
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