Criminal Law Flashcards
How do conflict resolution and punishment differ in their focus and application within the legal system?
Conflict Resolution:
- Resolves disputes fairly, restores balance, and maintains harmony.
- Found in Private and Public Law through mediation, negotiation, or court rulings
Punishment:
- Enforces accountability for wrongful acts under Criminal Law.
- Aims to deter future offenses and deliver justice through penalties like fines or imprisonment.
Key Difference:
Conflict resolution seeks harmony, while punishment imposes consequences. Both uphold legal order in society.
What are the elements of theft under traditional legal definitions, and how does the electricity example challenge this definition?
Elements of Theft:
- Taking away from another.
- A movable thing belonging to another.
- Intention of unlawful appropriation for oneself or a third party.
Penalty: Imprisonment up to 5 years or a fine.
Electricity Issue:
- Electricity is not a “movable thing” under traditional definitions, so theft laws don’t apply.
- Instead, specific laws like § 248c address unauthorized use of electrical energy, treating it as a unique crime.
What does the principle of “nulla poena sine lege (Praevia)” mean, and how does it apply to retroactive criminal law?
Meaning: No punishment without law (also not retro effective).
Application: A person cannot be punished for actions that were not crimes at the time of commission.
- Prevents ex post facto laws.
Example:
* Unauthorized use of electricity before the enactment of § 248c could not result in punishment, as electricity was not a “movable thing” under earlier theft laws.
What role do rules and institutions (powers) play in maintaining order in society?
**Rules: **
- Guide behavior, address conflicts, and provide order, predictability, and fairness.
- Handle claims (civil disputes) and retributions (punishments).
Institutions:
Government enforces rules through 3 powers:
- Legislative: Enacts laws.
- Judicial: Interprets laws and resolves disputes.
- Executive: Enforces laws.
Goal: Uphold justice and maintain societal order.
What are the three main branches of law, and how do they function?
Civil Law :
Resolves private disputes (e.g., property, contracts, family matters).
Focuses on claims (who owes what to whom).
Public Law:
Regulates relationships between individuals and the state (e.g., constitutional law).
Criminal Law:
Addresses crimes and punishments for harm to society (e.g., theft, assault).
Focuses on retributions.
Structure: Rules resolve claims and enforce retributions, ensuring fairness and justice.
What was Thomas Hobbes’ view of society without a state, and how does this relate to the need for governance?
State of Nature:
- A “war of all against all,” marked by constant conflict, insecurity, and lack of trust.
- Life would be “solitary, poor, nasty, brutish, and short.”
Leviathan:
- Hobbes argued for a strong, central authority (like the mythical Leviathan) to enforce order and protect individuals.
Modern Application:
Governance must maintain order while being accountable through the rule of law and separation of powers.
How does the rule of law balance the need for strong governance with the prevention of tyranny?
**Rule of Law: ** Even the state is subject to laws, ensuring accountability.
Separation of Powers (Montesquieu):
Divides power among three branches to prevent tyranny:
- Legislative: Enacts laws.
- Judicial: Interprets laws.
- Executive: Enforces laws.
Goal: Avoid concentration of power while ensuring order and fairness.
What are the key principles of Substantive Justification in criminal law?
Focuses on the creation and content of criminal laws
=> based on ethical reasoning and align with societal values.
Sets limits on what should be criminalized:
- Ultima Ratio Principle: Criminal law should only be used as a last resort to address serious harm to legally protected interests (e.g., life, property, freedom). It avoids overcriminalizing trivial matters.
- Proportionality: Laws and punishments must correspond to the gravity of the offense. Overly harsh or lenient laws violate this principle.
Example: A law criminalizing theft is substantively justified because it protects property (a legally protected interest) and ensures proportional punishment for harm caused.
What are the core principles of Procedural Justification in criminal law?
Procedural Justification focuses on the application and enforcement of criminal laws, ensuring decisions in individual cases are rule-based, consistent, and fair.
Sets limits on punishment decisions:
- Human Dignity: Even those accused or convicted must be treated with respect.
- Transparency: Legal processes must be clear, open, and understandable to ensure trust.
- Reasonableness: Punishment must be logical and not arbitrary, excessive, or unfair.
Example: During the prosecution of theft, procedural justification ensures a fair trial, transparent evidence presentation, reasonable punishment, and respect for human dignity.
How does Substantive Justification protect against abuse in criminal law?
Substantive Justification prevents laws that are:
- Unjust: Misaligned with ethical principles or societal values.
- Excessive: Overly harsh or unnecessary.
- Misaligned: Criminalizing trivial actions.
This ensures that criminal law focuses only on addressing serious harm to legally protected interests.
How does Procedural Justification strengthen the rule of law and protect against abuse?
Procedural Justification ensures fairness by:
- Guaranteeing transparent and rule-based decisions.
- Promoting consistency and impartiality.
- Respecting dignity while preventing arbitrary punishments.
This reinforces the rule of law and safeguards individual rights through predictable enforcement.
How do Substantive and Procedural Justifications balance justice and order in criminal law?
- Substantive Justification addresses ethical concerns by ensuring laws are created for valid and moral reasons.
- Procedural Justification ensures operational integrity by enforcing these laws fairly and consistently.
Together, they prevent misuse of criminal law, maintaining justice (ethics) and order (fair enforcement).
Provide a practical example of how substantive and procedural justification work together in criminal law.
Substantive Justification Example: A law criminalizing fraud protects property and prevents harm, addressing ethical concerns.
Procedural Justification Example:
- Fraud trials must respect transparency (e.g., informing the accused of charges).
- Punishments must be reasonable and proportional to the offense.
- The process must respect the accused’s dignity.
This framework ensures ethical law creation and fair enforcement.
What is the difference between Substantive Criminal Law and Procedural Criminal Law?
Substantive Criminal Law:
- Defines crimes and their punishments.
- Codified in the Criminal Code (CC).
- Example: Determining that theft is a crime punishable by imprisonment.
Procedural Criminal Law:
- Governs the enforcement of substantive laws, including processes leading to punishment.
- Codified in the Code of Criminal Procedure (CCP).
- Example: Ensuring a fair trial and adherence to rules of evidence before punishing theft.
Key Point: Not everyone who “incurs a penalty” is punished because procedural law protects individuals from unjust outcomes by setting strict standards for fairness and evidence.
What are the tasks and purpose of Procedural Criminal Law?
Tasks:
- Determines when and how to investigate crimes.
- Provides guidelines for treating defendants and conducting trials.
- Regulates the evaluation and use of evidence.
- Manages the enforcement of judgments and treatment of convicts.
Purpose:
- Protects legal rights.
- Ensures due process.
- Maintains justice by upholding fairness and preventing unjust punishment.
