The traditional approach to criminal law is that criminal acts are honourably wrong. The principle of criminal recommendations was to have the offender give retribution for harm done and redress his or her guilt; the punitive measure was to be apportioned in proportion to the guilt of the accused. In modern times more rationalistic and pragmatic ideas have predominated. Writers of the Enlightenment such as Cesare Beccaria in Italy, Montesquieu and Voltaire in France, Jeremy Bentham in Britain, and P.J.A. von Feuerbach in Germany considered the core reasoning of criminal law to be the prevention of criminality. Along with development of the social sciences, there arose advanced ideas, such as those of the protection of the public and reform of offenders. Such reasoning can be seen in the West German criminal code of 1975, which provides that the court “has to consider the consequences of the sentence upon the future life of the offender in society”. In the United States, a Model Penal Code proposed by the American Law Institute in 1962 states that an objective of criminal law should be “to give fair warning of the nature of the conduct declared to constitute an offense” and “to promote the correction and rehabilitation of offenders.” Since that time there has been renewed interest in the concept of general prevention, including both the deterrence of possible offenders and the stabilisation and strengthening of social norms.
Common Law and Code Law
Principal differences exist between the criminal law of most English-speaking countries and that of other countries. The criminal law of the U.K. and the U.S. is derived from traditional English common law of crimes and has its origins in the judicial decisions embodied in reports of past cases. England has continuously toward comprehensive legislative codification of its criminal law; even now there is no statutory definition of murder in English law. Some Commonwealth countries, however, notably India, have established criminal codes that are based on the English common law of crimes.
The criminal law of the U.S., derived from the British common law, has been adapted in some respects to American conditions. In the majority of the U.S. states the common law of crimes has been rescinded by legislation. The consequences of such resolutions is that no person can be tried for any offense that is not specified in the statutory law of the state. But even in these states the common-law principles continue to exert influence, for the criminal statutes are very often simply codifications of the common law, and their provisions are interpreted by reference to the common law. In the remaining states, prosecutions for common-law offenses not specified in statutes may at times occur. In a few states the so-called penal, or criminal, codes are simply collections of individual provisions with only small effort made to relate the parts to the whole or to define or implement any theory of control by penal measures.
In western Europe criminal law of recent times has come about from various codifications. Particularly the two Napoleonic codes, the Code d’Instruction Criminelle of 1808 and the Code Pénal of 1810. The latter constituted the leading model for European criminal legislation during the first half of the 19th century, after which, although its influence in Europe dwindled, it continued to play an important role in the legislation of particular Latin-American and Middle Eastern countries. The German codes of 1871 (penal code) and 1877 (procedure) gave the models for other European countries and had powerful influence in Japan and South Korea, although after World War II the U.S. laws of criminal procedure were the main influence in the latter countries. The Italian codes of 1930 embody one of the most technically developed legislative efforts in modern history. English criminal law has particularly influenced the law of Israel and that of the English-speaking African states. French criminal law has predominated in the French-speaking African states. Italian criminal law and theory have predominated in Latin America.
In recent times the movement for codification and law reform has made considerable progress everywhere. The American Law Institute’s Model Penal Code fostered a comprehensive reexamination of both federal and state criminal law, and new codes were enacted in many states. England has enacted a number of important reform laws (including those on theft, sexual crimes, and murder), in addition to modern statutes on imprisonment, probation, suspended sentences, and community service. Sweden enacted a new strongly progressive penal code in 1962. In West Germany (Federal Republic of Germany) a revised version of the criminal code was published in 1975 and subsequently has been amended. In the same year a new criminal code came into force in Austria. New criminal codes have also been published in Portugal (1982) and Brazil (1984). France enacted significant reform laws in 1958, 1970, 1975, and 1982, as did Italy in 1981 and Spain in 1983. Other reforms have been under way in Finland, The Netherlands, Belgium, Switzerland, and Japan. The Soviet Union’s constituent republics began enacting revised criminal codes in 1960, as did Czechoslovakia and Hungary (1961), East Germany (German Democratic Republic), Bulgaria, and Romania (1968), and Poland (1969). After Yugoslavia became a federal state in 1974, a number of local penal codes came into force in addition to the federal code of 1977.
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