Basic concepts of Criminal Law (2015)Apunte Inglés
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BASIC CONCEPTS OF CRIMINAL LAW.
1. Sources of the law.
Legislation: Statutory law.
Criminal law: it regulates social conduct and proscribes whatever is threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare (bienestar) of people.
o It includes the punishment of people who violate these laws.
o Criminal law vs. civil law.
International law: body of rules which govern the relationship and conduct between states. International criminal law.
Custom (costumbre) : a usage (uso) or practice of the people, which, by common adoption and acquiescence and by long and unvarying habit, has become compulsory, and has acquired the force of a law. Es decir, debido al uso informal de una costumbre, al final, con el paso del tiempo esos usos se hacen formales y se incorporan a la ley.
Black’s Law dictionary.
Case-law: Judicial decisions.
Precedent: judgement or decision of a court of law cited as an authority for deciden a similar state of fact in the same manner or on the same principle or by analogy. (Dictionary of English law).
Doctrine: writings or written opinions by scholars.
2. Legal systems.
Two main legal systems: the common law and civil law traditions.
NB: Civil law has two meanings: - Matters of private law ≠ criminal law.
- A legal system based on a civil code.
Legal systemsCommon law.
It is a system of law that emerged in England in de Middle Ages and is based on case law and precedent rather than codified law.
o It is generally uncodified.
o Importance of the case law: Judicial decisions are binding (vinculantes).
Concept of stare decisis and precedent.
Judges have an enormous role in shaping (organización) the law.
Legal systemsCivil System of law that emerged in continental Europe in the Middle Ages and is based on codified law drawn from national legislation and custom as well as ancient Roman law.
o o o It is codified: written constitution and specific codes enshrining basic rights and duties. Constitución escrita y códigos específicos que consagran los derechos y deberes básicos.
Importance of the legislative acts, i.e. the acts adopted by the legislature.
Specific courts to the underlying codes.
3. Principles of criminal law.
Minimum criminalisation: the scope of the criminal law should be kept to a minimum (el ámbito de aplicación de la ley penal debe mantenerse al mínimo).
Protect individual autonomy.
Principle of legality and non-retroactivity.
o Behaviour cannot be criminal if no law exists that defines it as such.
o Criminal law must not be retroactive or ex post facto. Laws are binding only from the date or their creation or from some future date at which they are specified as taking effect. La ley solo se puede imponer en el momento en el que se crean y en momentos futuros, no antes.
Important legitimacy factor of any system of criminal law.
Non bis in diem –double jeopardy rule.
o No person should be punished more than once for the same offence.
Although a specific law change.
o The punishment of a certain crime should be in proportion to the severity of the crime itself.
Presumption of innocence- “innocent until proven guilty”.
o The basis of our system of criminal justice is that a person, although charged with an offence in considered innocent until proved guilty of the offence.
QUESTIONS: 1. What are the main differences between common and civil law? The main differences between common and civil law are: firstly, the codification, the common law generally hasn’t got codification because this laws use to be judicial decisions, while civil law is encoded into a code. Secondly, in common law the decisions of the judge are important if a judge is not agree with the “new law” it will be not imposed, while in the civil law, the judge decision is less crucial because he is below the legislation and below the laws. And finally, common law is more flexible than the civil law which is more rigid.
2. In which system is “precedent” an important concept? “Precedent” is an important concept in the Common law 3. Discuss the potential for tension between the legislature and the courts in the common law system. Example? ...