Criminal law

• 1. Introduction

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  Criminal law is the body of law that relates to crime, and it reaches back to the earliest days of organized human civilization. Long before courts had bailiffs or judges wore robes, the Sumerians were already writing down rules. Around 2100-2050 BC, Ur-Nammu, the Neo-Sumerian king of Ur, enacted a written legal code whose text has actually survived. That text is one of the oldest known legal documents on earth. What drove societies to write law down in the first place? What does a system built on punishment really seek to accomplish? And how did a body of rules cobbled together across centuries of conquest, theology, and empire become the framework that governs nearly every courtroom on the planet today? Those are the questions this documentary explores.

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• 2. From Tablets to Trials

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  The Code of Ur-Nammu was not the only early attempt to order human behavior through written law. An even earlier code, that of Urukagina of Lagash, is known to have existed, dating to roughly 2380-2360 BC. Then came the Code of Hammurabi, which formed the core of Babylonian law. Only fragments of the early criminal laws of Ancient Greece survive, among them those attributed to Solon and Draco. In Roman law, the jurist Gaius wrote Commentaries on the Twelve Tables that still blurred what we would now call criminal from civil matters. Theft was treated as a tort. Violent robbery was analogized to trespass against property. The criminal law of imperial Rome was eventually gathered in Books 47 and 48 of the Digest. After Roman law was revived in the 12th century, those sixth-century Roman classifications provided the foundations for the distinction between criminal and civil law across Europe, a distinction that persists to the present day. The first clear signs of that modern separation emerged during the Norman Invasion of England.

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• 3. Guilt, God, and the Guilty Mind

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  Alfonso de Castro, writing in the tradition of Spanish Late Scholasticism, helped transform a theological concept into a legal one. The idea of God's penalty, or poena aeterna, inflicted only on a genuinely guilty mind, migrated first into canon law and then into secular criminal law. This is where the concept of mens rea, Latin for "guilty mind," found its secular footing. Three early modern jurists shaped what came next. Benedikt Carpzov, a German professor of law at Leipzig, lived from 1595 to 1666. Prospero Farinacci, a Roman judge and lawyer, lived from 1544 to 1618. Giulio Claro, a Piedmontese lawyer and statesman, lived from 1525 to 1575. Together they were the codifiers and architects of early modern criminal law. Then, in the eighteenth century, European countries began maintaining police services. That structural change gave criminal law the enforcement mechanisms it needed to develop as a recognizable, formalized entity.

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• 4. What Punishment Is For

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  Five objectives are widely accepted for why societies punish crime, and they do not always point in the same direction. Retribution holds that criminals ought to be punished because they have taken improper advantage of others, and the law must restore a balance. People submit to the law to receive the right not to be murdered; those who break that compact, the theory goes, surrender the rights the law had granted them. Deterrence works on two levels: individual deterrence aims to discourage the specific offender, while general deterrence aims at society at large by making the consequences of crime visible. Incapacitation is the simplest logic of all: keep offenders away from society so the public is protected. Prison sentences achieve this today; historically, capital punishment and banishment served the same purpose. Rehabilitation aims to transform an offender into a contributing member of society by convincing them their conduct was wrong. Restoration, the fifth objective, is victim-oriented. An embezzler, for instance, may be required to repay the amount improperly acquired, returning the victim as closely as possible to their original position before the harm. Jurisdictions differ, sometimes sharply, on how much weight to give each of these goals.

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• 5. Acts, Omissions, and Intent

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  Proof of a crime generally requires proof of some act, what legal scholars call the actus reus, or guilty act. A parent's failure to provide food to a young child can satisfy the actus reus requirement just as a physical strike can, because a legal duty to act existed. Where an omission is the basis of a charge, that duty can arise from a contract, a voluntary undertaking, a blood relation with whom one lives, or even one's own creation of a dangerous situation. British courts have held, for instance, that switching off life support for a patient in a persistent vegetative state is an omission rather than a criminal act, because discontinuation of power is not voluntary, is not grossly negligent, and is in the patient's best interest. If more than one cause contributes to harm, the act must have more than a slight or trifling link to that harm. Causation can be broken by an intervening act of a third party, by the victim's own conduct, or by another unpredictable event; a mistake in medical treatment typically will not sever the chain unless the mistakes are themselves so potent in causing death. The mens rea requirement sits alongside the actus reus. A killing carried out with a specific intent to kill, or with conscious recognition that death or serious bodily harm will result, is murder. A killing effected by reckless acts that lack that consciousness is manslaughter. The doctrine of transferred malice means that if a man intends to strike one person but his belt bounces off and hits another, the guilty intent transfers to the person actually struck, though this doctrine does not exist in Scots law.

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• 6. Categories of Crime

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  Murder, broadly defined as unlawful killing, is probably the act most frequently targeted by criminal law. In many jurisdictions it is divided into gradations of severity, such as first-degree murder, based on intent. Malice is a required element. Manslaughter, called culpable homicide in Scotland, is a lesser form of killing brought about by reasonable provocation or diminished capacity. Beyond fatal offenses, criminal codes typically protect the physical integrity of the body. Battery is traditionally understood as an unlawful touching, while creating a fear of imminent battery constitutes assault. Rape is classified as a particularly egregious form of battery. Property crimes cover trespassing, conversion, embezzlement, theft, robbery, arson, and vandalism; in the UK, fraud is governed by the Fraud Act 2006. Some codes also criminalize participation in ventures that never come to fruition, including aiding, abetting, conspiracy, and attempt. In Scotland, the English concept of aiding and abetting is instead known as art and part liability. Underlying all these categories is a classical legal distinction: mala in se refers to acts considered inherently evil or morally wrong regardless of jurisdiction, while mala prohibita covers acts that are simply prohibited by statute without any inherent wrongfulness, such as jaywalking or unlicensed fishing. Mala prohibita offenses are typically imposed strictly, with no mens rea component required.

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• 7. Criminal Law Across Borders

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  Territorial jurisdiction gives a court authority over legal proceedings in a defined geographic area, but criminal law does not always stop at national borders. Extraterritorial jurisdiction allows a state to prosecute crimes committed outside its territory when those crimes affect national security. Universal jurisdiction goes further still: it allows any state to prosecute alleged perpetrators of certain offenses regardless of where those crimes occurred or the nationality of those involved. The formative moment for modern international criminal law came after the Second World War, when the Nuremberg trials prosecuted leaders of Nazism for genocide and atrocities across Europe. Those trials established a principle that had not been clearly fixed before: individuals acting on behalf of a government can be tried for violations of international law without the protection of sovereign immunity. In 1998, an International Criminal Court was established through the Rome Statute, extending the logic of Nuremberg into a permanent institution.

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