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principles of criminal law
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- What is Criminal Law and Punishment?
- Criminal law deals with crimes, which are offenses punishable by criminal sanction.
- Punishment involves the infliction of suffering, a loss of freedom, or financial penalties by the state, distinct from compensation.
- Criminal law is primarily national, but international criminal law and human rights frameworks (e.g., EU law, ECHR) significantly impact national systems.
- Theories of Punishment:
- Retributivism (Absolute Theories): Punishment is justified because a crime was committed ('punitur quia peccatum est'). It is backward-looking.
- Key concepts: 'Just desert,' 'lex taliones' (an eye for an eye).
- Types: Divine, Moral (Kant: compensates ethical principle violation), Legal (Hegel: reaffirms legal order).
- Arguments: Free will, paying back debt to society, addressing unfair advantages.
- Limits: Personality of criminal liability (punish only the guilty), Proportionality (punishment fits the crime).
- Criticisms: Morality's subjectivity, lack of consensus on 'just' punishment, state's role in enforcing morality.
- Preventive Theories (Relative Theories): Punishment is justified by its purpose of preventing future crimes ('punitur ne peccetur'). It is forward-looking.
- Utilitarianism (Bentham): Maximize overall societal happiness/utility. Punishment is an instrument to prevent future crimes.
- Deterrence: Rational individuals weigh pain vs. pleasure.
- General deterrence: Deters others in society by example.
- Specific deterrence: Deters the offender from re-offending.
- Criticisms: Ethical concerns (treating individuals as means), potential for disproportionate punishment, empirical doubts (certainty of punishment is more effective than severity).
- Positive General Prevention: Educates citizens on societal values.
- Special Prevention: Focuses on the individual offender.
- Positive Special Prevention (Rehabilitation): Aims to restore the criminal, making them a good citizen. Requires measures beyond incarceration.
- Negative Special Prevention (Incapacitation): Physically prevents the offender from committing crimes (e.g., imprisonment).
- Criticisms: Rehabilitation's effectiveness is debated; incapacitation can lead to indeterminate sentences and proportionality issues; moral objections regarding individual autonomy.
- Utilitarianism (Bentham): Maximize overall societal happiness/utility. Punishment is an instrument to prevent future crimes.
- Restorative Justice: Moves away from punishment, focusing on victim compensation and re-establishing dialogue between offender and victim.
- Retributivism (Absolute Theories): Punishment is justified because a crime was committed ('punitur quia peccatum est'). It is backward-looking.
- Polyfunctionality of Punishment:
- Many scholars believe punishment serves multiple purposes simultaneously (e.g., Italian Constitution Art. 27: rehabilitation).
- Different purposes may dominate at various stages: deterrence (threat stage), special prevention/rehabilitation (sentencing and enforcement stages).
- Principles Limiting the State's Power to Impose Penalties:
- Proportionality: Punishment must be proportionate to the crime's seriousness and offender's culpability (Art. 49 European Charter of Fundamental Rights).
- Prohibition of Inhuman and Degrading Punishments (Art. 3 ECHR): Absolute guarantee against torture, inhuman, or degrading treatment (e.g., prison overcrowding, solitary confinement).
- Prohibition of Capital Punishment: Abolished in most Council of Europe states (Protocols 6 & 13 ECHR). ECHR jurisprudence regards extradition to countries with death penalty as a potential violation of Art. 3.
- Life Imprisonment: Considered a violation of Art. 3 ECHR if it is 'irreducible' (no prospect of release) or 'grossly disproportionate' (Vinter and Others v. UK). The Italian 'ergastolo ostativo' (life without parole for non-cooperating mafia members) was found to violate Art. 3 (Viola v. Italy).
- Theories of Criminalization:
- Mala in se vs. Mala quia prohibita: Distinguishes inherently wrong acts from acts wrong only because prohibited by law.
- Continental European Tradition (Legal Goods): Criminal law should only protect 'legal goods' (socially relevant interests). This acts as a limit to state power and influenced the 'offensiveness principle' in Italy.
- Anglo-American Tradition (Harm Principle - John Stuart Mill): Criminalization is justified only when conduct causes 'serious harm' to individuals or creates a serious risk of harm.
- Offence Principle (Feinberg): Supplements the harm principle, allowing criminalization of acts causing 'offence' or strong negative feelings, though criticized for subjectivity.
- Paternalism: Debates whether acts harming oneself (e.g., drug use) should be criminalized.
- Hard paternalism: Protects capable adults against their will (criticized for violating autonomy).
- Soft paternalism: Intervenes only when conduct is not substantially voluntary, protecting rational choices from external factors.
- Legal Moralism: Criminalizes acts considered immoral. Criticized for subjectivity ('straight moralism') or justified if safeguarding shared societal values ('functional moralism').