The common approach to criminal law has been that crime is an act that is conscientiously wrong. The purpose of criminal recommendations was to make the offender make retribution for harm done and appease his or her moral guilt; the punitive measure was to be apportioned in proportion to the magnitude of the crime. In modern times more rationalistic and practical concepts have dominated. 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 thought the core reasoning of criminal law to be prevention of criminality. With the development of the social sciences, there arose contemporary ideas, such as those of the protection of the public and reform of the offender. Such reasoning can be found in the West German criminal code of 1975, which provides that the court “must consider the effect 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 idea of basic prevention, including both the deterrence of potential offenders and the stabilization and strengthening of social measures.
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 the traditional English common law of crime and has its origins in former judicial decisions embodied in reports of past cases. England has unvariably regarding 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 enacted criminal codes that are based on the English common law of crimes.
The criminal law of America, derived from the English 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 In the majority of the U.S. states the common law of crimes has been rescinded by legislation.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 edicts is that no-one is able 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 do continue to have an influence, for the criminal statutes are most 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 specifically mentioned in statutes may sometimes happen. In a few states the so-called penal, or criminal, codes are simply collections of individual provisions with minimal effort made to connect the parts to the whole or to define or implement any theory of control by penal measures.
In western Europe the criminal law of recent times has emerged from a number of codifications. By far the most important were 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 a significant part in the legislation of certain Latin-American and Middle Eastern countries. The German codes of 1871 (penal code) and 1877 (procedure) were the models for other European countries and had significant influence in Japan and South Korea, although after World War II the U.S. laws of criminal procedure were the predominant influence in the latter countries. The Italian codes of 1930 embody one of the technically most developed legislative efforts in modern history. English criminal law has particularly influenced the law of Israel and also 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 stimulated a comprehensive reexamination of both federal and state criminal law, and new codes were enacted in many states. The U.K. has enacted several important reform laws (including those on burglary, sexual offenses, and homicide), as well as modern legislation 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 often 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 important 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, several local penal codes came into being in addition to the federal code of 1977.
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