Markus D. Dubber
Criminal law occupies an odd position in the field of comparative jurisprudence. Historically speaking, one can occasionally read that comparative law as a serious academic discipline began as comparative criminal law, either in Germany or in France, or both. And yet, introductions to comparative law tend to assume that comparative law means comparative civil law first and foremost. The first section of this chapter describes criminal law’s parochialism. The second section discusses the histories and functions of comparative criminal law. The third section discusses selected topics in comparative law, such as punishment theory, victims, jurisdiction, the principle of legality, the an analysis of criminal liability, and general principles of criminal liability. The last section discusses comparative criminal law in context, arguing that comparative criminal law is best seen as a mode of critical analysis of law, that is, as one way to gain critical distance from a given legal system by placing it within a larger context.
Luis E. Chiesa
This chapter discusses comparative criminal law and demonstrates how comparative analysis can elucidate both domestic and international aspects of criminal law. After explaining what it means to do comparative criminal law and how it differs from similar endeavors, such as compiling the criminal law doctrines of different jurisdictions, the chapter considers the usefulness of comparative analysis in terms of strengthening domestic criminal law doctrines and understanding international criminal law. It also outlines some obstacles to be overcome in order to engage in meaningful comparative analysis, such as language, legal, historical, and cultural barriers. It compares common law and civil law approaches to legal reasoning and presents two examples of doing comparative criminal law by comparing common law and civil law approaches to attempt liability and then exploring mens rea, with an emphasis on the differences between the continental mental state of dolus eventualis and the Anglo-American mental state of recklessness.
This chapter deals with European criminal law and its relation to domestic law, international law, transnational law, and criminal justice. It begins with an introduction to general institutional developments in the structures of the European Union that resulted in the emergence of a fragmentary transnational criminal law. In particular, it traces the development of European criminal law to deal with crime control involving terrorism and other crimes of an international character, from the Amsterdam Treaty (1997/1999) to the Framework Decision. It also discusses cooperation in the field of criminal law among the Member States of the European Union. Attention then turns to the general traits of international criminal law. In the EU setting, the adoption of the mutual recognition principle as the cornerstone of criminal law cooperation is given consideration.
Val Napoleon and Hadley Friedland
This chapter sketches four phases or eras that characterize the changing state of debate regarding Indigenous legal traditions and highlights the progress and ongoing challenges faced by Indigenous people in trying to recover these legal traditions as part of their decolonization and self-determination efforts. It begins by setting out a logical starting point from which to root the discussion about Indigenous legal traditions. Attention then turns to the repression of Indigenous legal traditions during early colonization and the resilience of these traditions through this dark period, along with the contemporary recovery and revitalization of Indigenous laws despite the limited spaces afforded to them by state justice systems. The chapter looks at the wetiko (also known as windigo) in order to highlight the broader issues all Indigenous legal traditions have had to contend with through the four eras described. The Indigenous experiences are examined in relation to Canada’s criminal justice system.
This chapter deals with Islamic criminal law. It begins by enumerating the various sources of Islamic criminal law, including the Quran, the sunnah, the consensus of the Islamic community (umma), and analogy (qiyas) for Sunni Muslims and reason (‘aql) for Shi‛i Muslims. Attention then turns to three categories of crime in Islamic criminal law according to punishment: crimes punished with hadd, crimes punished with qisas (retributive punishment of retaliation in cases of homicide and bodily injury), and diya (blood money that has to be paid for homicide and bodily injury when there is no retaliation), and crimes subject to ta‛zir punishments. The system of proofs that is integrated into substantive law is given consideration, along with the characteristic features of substantive and procedural law. The chapter also discusses several contemporary topics relevant to Islamic criminal law, including the nulla poena sine lege principle and the age of criminal responsibility.
This chapter examines diverse scholarly opinions and disagreements about Jewish criminal law that have never been resolved and rarely applied. It discusses the dual aspect of Jewish criminal law that makes it universal, binding on both Jews and non-Jews. Attention shifts to the internal Jewish criminal law and its offenses, including those punishable by death or flogging. It shows that punishment in Jewish law is redemptive rather than deterrent and also examines the expression in the Torah “a life for a life, an eye for an eye,” and how it is interpreted by rabbinic law. It considers the King’s law as well as the seven crimes articulated by Noah: murder, theft, idolatry, blasphemy, sexual offences (adultery, homosexuality, bestiality, incest), eating flesh taken from a living animal, and “Laws.” Finally, it looks at the treatment of homicide and analyses a number of criminal defenses such as insanity, self-defense, duress, and necessity.
Stephen C. Thaman
This chapter examines Marxist and Soviet law in relation to criminal law. It begins by providing an overview of Marxism and a Marxist critique of law prior to the Russian Revolution, with particular reference to the place of criminal law in the writings of Karl Marx, Friedrich Engels, and Vladimir Lenin. It then considers three main trends in the development of criminal law theory in the Soviet Union and their impact on Soviet criminal codes and overall Soviet criminal policy: “Marxist” radical utopian minimalism, “enemy criminal law” aimed at consolidating the rule of the Communist Party, and the “socialist rule of law” under the reign of Joseph V. Stalin. The chapter also discusses the general principles of Soviet criminal law that make it distinct from Western criminal law systems, focusing on areas such as judicial discretion, actus reus and social dangerousness, mens rea, inchoate crimes and accomplice liability, and punishment.