Sources of the Criminal Law (II)


Continental Countries

The nations of western Europe entered the modern period with a corpus of criminal jurisprudence reflecting the varying influences of Roman law, canon law and local custom. The law that so evolved was notable for its harshness and its arbitrary qualities, and few protections to accused persons were provided. Reform of the criminal law thus became an important objective of liberal reform. As early as 1532 Charles V promulgated the Constitutio Criminalis Carolina for the whole of the Holy Roman Empire. Austria produced two famous codes in the 18th century:

  • Constitutio criminalis Theresiana of 1769
  • Emperor Joseph II’s code of 1787.

By far the most important enactments in the history of modern European criminal law were the two Napoleonic codes, the Code of Instruction Criminelle of 1808 and the Code Penal of 1810. The first was finally replaced in 1958 by the Code de Procedure Criminelle, but the latter, although substantially revised in 1832 and in 1863 and frequently amended at other times, has never been repealed. The Code Penal constituted the leading model for European criminal legislation throughout the first half of the 19th century. Thereafter its influence waned, although it continued to play an important role in the legislation of certain Latin-American and middle eastern countries.

The German codes of 1871 (penal code) and 1879 (procedure) provided the models for many central European countries, and have had significant influence in Japan and South Korea. The Italian codes of 1930 represent one of the most interesting legislative efforts in the modern period.
Since World War II notable undertakings include the code of procedure of 1950 and the penal code of 1957 adopted by the German Federal Republic and the Yugoslav criminal code of 1951.

Comparisons between the systems of penal law developed in the western European countries and those having their historical origins in the English common law must be stated cautiously. As already noted, substantial variations exist even among the nations that adhere generally to the Anglo-American system or to the law derived from the French and German codes. However, in many respects the similarities of the criminal law in all states are more important than the differences.
Certain forms of behavior such as those identified in Anglo-American law as murder, aggravated assault, robbery, and theft are everywhere condemned by the law. In matters of mitigation and justification the continental law tends to be more explicit and articulate than the Anglo-American law, although modem legislation in countries adhering to the latter are reducing these differences. Contrasts can be drawn between the procedures of the two systems, yet even here a common effort to provide fair proceedings for the accused and protection for basic social interests
is expressed.

Other Countries

There are almost infinite variations in matters of substance and detail in the law of the countries of Africa and Asia. Some of these nations possess highly sophisticated bodies of law such as those in the country of India. The penal law of many of the new nations of Africa and Asia still bears the imprint of the principles and institutions established by the colonizing powers, and hence continues to feel the influence of the continental codes in some instances, and of Anglo-American law in others. In many of these countries, however, the law developed by the colonizing power varied significantly from that administered by the mother country. The amalgam is further complicated by a great verify of local factors such as religious beliefs, ideological commitments, tribal customs, and the extent to which a trained bench and bar have emerged.

In many of the new nations political instability inhibits the development of advanced systems of criminal justice that provide adequate procedural protections, especially to those accused or suspected of political crimes. In some instances, however, measures like the Preventive Detention act, 1958, in Ghana are similar to legislation that had earlier been applied in British India. Because in many respects the penal law is closely associated with the exercise of governmental power, evolution of the law in the new nations and countries like Communist China will depend on the nature of political developments in those nations.