Comparative Criminal Law currently appears to be on the increase, at least statistically speaking. But this wasn’t always the case. When searching through traditional textbooks on criminal law, it’s amazing to notice that this field, just like any other, seems to have long been regarded as a strictly personal realm of private law with the few men who wrote down these treatises being little more than men who had never before considered what crime consisted of, let alone how they might attempt to solve it. Is this the fault of those who write and produce these texts, or are there in fact hidden depths? Many would say that it’s both, with many pointing to the lack of solid foundations upon which to build from. Others would argue that it’s both, with the problem being that we simply can’t find any textbooks that properly represent this vast and interesting subject.
While there certainly may be an abundance of it all around us, the problem really is that we’re attempting to treat a broad subject through the narrow focus of a few texts. The result has been a lot of overly broad treatments of the issue, and not much effort at all towards narrowing it. The result has been that many of these books have actually done more to give the general public ideas about what the laws of criminal justice may not apply to a given case. And what this has done is to create confusion, and even occasionally allow the occasional wrong move or decision to go unchallenged. When someone has a question about the law or the facts of a case but doesn’t have any expert guidance to go along with it, then the result is often the conclusion that they arrive at because of their own personal cultural values, beliefs and opinions, rather than the true facts of what’s going on.
There are two basic theories in the field of criminal law. One of them is known as traditional criminal law. This covers crimes that happen in the past, like robbery, kidnapping, rape, and murder, as well as various other lesser crimes. Traditional criminal law also includes a number of civil law crimes, including: negligence in hiring someone to work for your company (like when you don’t hire employees because you believe they’ll be thieves), wrongful termination, discrimination (on the basis of race, gender, religion, age, etc), accidents, larceny, and so on. All of these fall under customary law.
Under customary criminal law, the punishment for criminal acts is established through the application of certain norms and standards which govern the conduct of ordinary people. These include what’s called “laws of public safety and morals”, which deals with things like respect for private property, cruelty in terms of public policies like racism, sexism, discrimination based on nationality or ethnicity, and more. Other types of punishment may include compulsory labor (for those who are engaged in jobs that cause excessive suffering) or capital punishment.
The second theory of criminal law that we will discuss is known as substantive law. This theory makes it possible for the courts to interpret the criminal code in different ways. Unlike customary criminal code, substantive criminal code does not depend on what “is customary”. Rather, it relies on what “is justifiable”. That is to say, the application of the principle of legality to justify a particular type of action or omission. The way the legislature forms the various laws defining criminology also varies across the states.
In short, it is important for you, as an American citizen, to be aware of the differences between customary criminal law and the national criminal law. You must pay attention to distinctions within the statutes and the manner in which they are interpreted by the courts. Also, you should understand the difference between what is lawful and what is not. For instance, in many jurisdictions it has been held that a person who possesses a weapon at the time of commission of a crime, even if it is his weapon that is used to commit the crime, is nevertheless guilty of the crime regardless of whether he actually uses the weapon. The problem with this principle is that it could be applied to anybody who owns a weapon even if he never uses it to commit the crime. If this were the case, then everybody could be charged with possession of a weapon even if they had never committed a crime.
Some other distinctions that you should become familiar with include those drawn between federal criminal law and state criminal law enforcement. Federal criminal law is that which governs federal crimes like murder, conspiracy, terrorism, drug trafficking, computer crimes and theft; while state criminal law is that which governs state crimes like burglary, arson, rape, murder and statutory rape. It is important for you to bear in mind that although the government can prosecute its criminal acts under a broad array of statutes, the states have the sovereign right to define each of the statutes differently in their respective jurisdictions.
There are many other distinctions that exist between state and federal criminal laws. For instance, the federal government can only convict somebody under the federal laws, whereas the states are able to try state crimes under their own criminal codes. Moreover, the states retain the exclusive jurisdiction over felonies and misdemeanors whereas the federal government is free to use its powers of arrest and prosecution under various statutes even when the conduct in question is that of a federal offense. Finally, another important point that you need to understand is that the theories of criminal justice that you apply to a state criminal act may not necessarily apply to a federal act. For instance, if a person is convicted of burglary in one state but is also convicted of robbery in another state, the law that applies to the burglary conviction doesn’t necessarily apply to the robbery charge.