Unit 2: An American Perspective on Criminal Law

CJ106 Foundations of International and Comparative Criminal Justice

Unit 2 Assignments

Read (eBook): Chapters 3 and 4Extra Extra! (readings)Graded Work:

-- Discussion Board (25 pts)-- Seminar (15 pts)

-- Quiz (30 pts)70 Points Total

Discussion Boards

Follow “The Rule of Threes”:

– Three (3) responses minimum

– Three (3) different days

– Three (3) responses express critical thought and advance the discussion

Quizzes

Unlimited retakes (within unit) Unlimited time (within unit) Conclusion: go slow, and retake the quiz

until you answer every question correctly and collect the full 30 points.

Seminar Topics: Tonight

Substantive and Procedural (criminal law) The crime control model and the due process model The four legal traditions The impact the war on terrorism has had on issues

of safety and liberty Balancing security and personal liberties.

Substantive Criminal Law

What is substantive criminal law? Give an example.

Substantive Criminal Law

Substantive criminal law defines the conduct that qualifies as a crime. An example of substantive criminal law is the Illinois the Criminal Code. It contains definitions of all conduct that constitutes a crime, such as robbery, murder, theft, and kidnapping.

Procedural Criminal Law

What is procedural criminal law? Give an example.

Procedural Criminal Law

Procedural criminal law involves the rules that govern the enforcement of criminal laws. (Think of our constitutional protections in the Bill of Rights.)

Examples:

-- Search and Seizure (4th Amendment)

-- Privilege Against Self-Incrimination (5th Amendment)

-- Right to Counsel (6th Amendment)

-- No Cruel and Unusual Punishment (8th Amendment

Models of Criminal Process

Due Process model Criminal Control model

Due Process Model

What is the due process model? Examples?

Due Process Model

Assumes freedom is so important that every that every effort must be made to ensure that government intrusion follows legal procedure

Seeks to make decisions that identify legal guilt Follows rules that emphasize containing the government’s level of

intrusion into citizens’ lives Emphasizes legitimacy of action Insists on a formal, adjudicative, adversarial fact-finding process, even

though such restraints, may keep the process from operating with maximal efficiency

Due Process Model

ExamplesLegal guilty (versus factual guilt)

– See example on pp. 83-84

Warrantless searches and seizures presumed unreasonable

Crime Control Model

What is the crime control model? Examples?

Crime Control Model

Assumes freedom so important that every effort must be made to repress crime

Seeks to make decisions what will identify factual guilt

Follows rules that emphasize the repression of criminal activity

Emphasizes efficiency of action (i.e., speed and finality)

Requires a high rate of apprehension and conviction by early exclusion of those not likely to be guilty

Crime Control Model

Examples– Guilty pleas (barest form of adversarial process)– Probable cause to detain (Gerstein)– Finality of Conviction: constitutional right to only

one appeal after conviction; no constitutional right to collaterally attack conviction

Due Process vs. Crime Control

Who is the greatest threat to our freedom?– government agents, like police or prosecutors

-OR-– the criminal trying to harm us

* How would each model answer the question?

* Can both government and criminals deprive of property, liberty, and life?

* Who do you think is the greater threat?

*Which model does the United States follow?

Balancing Due Process and Crime Control

Due process = liberty Crime control = safety/security

Liberty and safety are always at odds. How do we balance our values of liberty and

safety?

Balancing Due Process and Crime Control

Benjamin Franklin’s once said: "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."

Do you agree or disagree with the quote? Explain.

Four Legal Traditions

Identify the four legal traditions we see in the world today?

Four Legal Traditions

Common Civil Socialist Islamic (religious/philosophical)

Common Law (Origins)

Feudal practices (historical base) Custom (common legal tradition with

principles) Equity (a sense of fairness)

– Law is binding because it is based on custom

Civil Law (Origins)

Roman Law (written worldly law) Canon Law (written spiritual law) Codification (written and revolutionary)

– Written: law enacted by recognized authority– Revolutionary: abolishes all prior laws

Law is binding because it was appropriately authorized and record.

**Note: common law countries have codified laws, but they supplement (not replace) prior laws.

Socialist (Origins)

Russian law – primary: decisions by princes acting as judges– Secondary: customs and Byzantine law

Law as artificial– Law is an arbitrary product of autocratic sovereigns (“Law is like a

wagon tongue, it goes wherever you turn it.”) Marxism-Leninism

– law is subordinate to policy (i.e., the policy that a collectivized economy and social state is above the idea of law or individual rights). Law is a tool (to assist in achieving a communist state), not an absolute value. Law will ultimately be irrelevant.

Islamic or Shari’a Law (Origins)

Qur’an and Sunna (primary law)– Qur’an: contains rules of God for human behavior (religious, social, personal, economic)– Sunna: living by the example of the prophet Muhammad (do as he said, did, or

approved). The Sunna explains, clarifies, and amplifies the Qur’an. (Sunna recorded in the hadiths)

ijma and qiyas (secondary law)– Ijma: the process whereby legal scholars reach an agreement (consensus) on questions not answered by Qur’an

or Sunna)—a gap filler.– qiyas: the process of reasoning by analogy (in order to reach a consensus)

Schools of law (variations in interpreting/applying Qur’an and Sunna)– Sunni: Hanafi, Maliki, Shafi’i, and Hanbali– Shi’a: Ja’afari

No distinction b/w legal system and other controls on a person’s behavior.

Islamic law intrinsic to Islamic faith and life.

Cultural Comparisons

What is the position of the judiciary in relation to other government branches?

– Common: courts share in balancing power– Civil: courts have equal but separate power– Socialist: courts inferior to legislature– Islamic: courts and other gov’t branches subordinate to the

Shari’a

Substantive Comparisons

What is the source of law, or where do laws come from?

– Common: custom– Civil: written code (provided by rulers or legislators)– Socialist: principles of the socialist revolution– Islamic: divine revelation

Procedural Comparisons

How is flexibility provided in each tradition when the source (e.g., custom or written code) doesn’t answer a question?

– Common: judge-made law and particularization– Civil: different judges define and interpret written codes

differently; identifying issues as questions of law – Socialist: principles of analogy and directions from higher-

level courts (punish conduct not covered in criminal code by analogizing to conduct outlawed in the code)

– Islamic: Mazalim courts and process and ijtihad

Unit 3 Project

Relying heavily on the course material from Units 1 and 2, as well as outside research, create a 6-8 slide PowerPoint presentation (excluding the title and reference slides) that addresses the following:Identify the sources and foundations of international criminal justice

– Discuss and explain the four legal traditions that are identifiable today

– How are the traditions similar?– How do the traditions differ?