Criminal Law

One important distinction in all countries is between private (or civil) law and public law. Public law concerns disputes between citizens and the state, or between one state and another. Criminal law is a category of public law. Crimes are the acts which the state considers wrongful and which can be punished by the state.

Because the remedy is punishment, some protections of the accused become necessary; we do not want to punish an innocent person. Thus, there can be no crime without a statute. The statute must set forth every material element of the criminal conduct. Since punishment is the remedy, we want to be certain that we punish the guilty, not the innocent.

In most legal systems it is an important principle that a person cannot be considered guilty of a crime until the state proves he committed it. The suspect himself need not prove anything, although he will of course help himself if he is able to show evidence of his innocence. The state has to prove his guilt according to as high standards as possible, and for each crime there are precise elements that must be proven.

There are usually two important elements to a crime: (i) the criminal act itself (Actus Reus¹) and (ii) the criminal state of mind of the person when he committed the act (Mens Rea²). When a person is being convicted, the question should be asked: “What punishment will carry out five purposes of punishment – reformation, restraint, retribution, rehabilitation and deterrence (specific or general)?”. Punishment should fit the crime. The more serious a crime is, the more severe a punishment should be.

Crime has three major parts: crime against person; crime against property; and crime against the public order. Crimes against person always involve force or threat of force against the body of another (murder, battery, rape, robbery, extortion, kidnapping, etc.). Crimes against property are distinguished by an absence of force against a person and loss of property is the key (theft, embezzlement, false pretences, forgery, arson, etc.). Crimes against public order include rioting, treason, and most of the “victimless” crimes (prostitution, sale of pornography, drug deals).

Technical change is one reason why criminal law is continually growing. Another reason is that the number of crimes committed in some countries is increasing rapidly – although sometimes it is not clear whether people are breaking the law more, being caught more, or reporting other people’s crimes more. One more reason may be that different societies continually review their ideas of what should be considered a crime. Homosexual acts, suicide and blasphemy (attacking religion) were once crimes in all European countries, but have now mostly been decriminalized. On the other hand race or sex discrimination against someone was not acknowledged as unlawful until relatively recently, and is still not recognized in some countries.

Notes:

¹ Actus Reus лат. виновное действие

² Mens Rea лат. виновная воля, вина

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