Criminal Law 1.1: What Is Criminal Law?

Transcript

So what is criminal law? This is going to be a class in criminal law. And criminal law is a topic you probably are familiar with to some degree, hopefully not from being exposed to criminal law in your personal life, but at least from watching TV, police procedural dramas, and so on. But we want to be a little bit more precise about what criminal law is and what makes it different from the other courses you're likely to study in your first year of law school.

So, first and foremost, I think criminal law is by far the most interesting class you're going to take in law school. And just as an example of that, one case that we often read at the very beginning of law school, very beginning of criminal law, is a case called The Queen against Dudley and Stephens. And it's a case about British sailors who killed a cabin boy when they were shipwrecked and cannibalized him. Not every criminal law case is quite that interesting, but criminal law cases tend to involve the hardest, most difficult disputes that really get your emotions pumping and really intrigue us. And I think, for that reason, it's just an absolutely fascinating area of law.

But let's be more precise. What makes criminal law different from other areas of law? Well, let's consider a few differences. One, criminal law is what we call public law. If you read any case in criminal law, it's going to involve a name like this: The Queen against Dudley and Stephens. The United States versus Smith. People versus Jones. Why is that? It's because criminal law violations are considered offenses against the state and a public actor, a public prosecutor, is bringing charges to vindicate the public interest.

That doesn't mean that there isn't a victim in criminal law, a private victim. There often is a victim, but that person can vindicate their own personal interests by seeking money damages in a civil action. Every criminal law is also considered an offense against the state.

Second difference, criminal law is mostly going to be statutory as compared to common law classes like torts, property, and contracts where judges continue to apply rules that they're just making up. Criminal law is supposed to only emerge from clearly written criminal statutes that put people on notice of what their obligations are. And we'll talk a little bit more about those requirements a little bit later in the class.

Third, criminal law involves criminal sanctions. And these are the most serious sanctions that are available in our legal system. If you breach a contract, you might have to pay some money. You might have to face some kind of injunction, but you're not going to go to prison. And you're certainly not going to get the death penalty. In criminal law, by contrast, the most serious sanctions, like incarceration and even death in some instances, are going to be available.

We're also going to use different procedures because of the weighty interests at stake. We're going to use the "beyond a reasonable doubt" standard, which is a harder burden of proof, a higher burden of proof than the "preponderance of the evidence" standard that's going to be used in other areas of law like torts, property, and contracts.

And so those are all significant differences, but what's the most fundamental difference? Well, let me tell you one that comes from an essay by Henry Hart called "The Aims of the Criminal Law," that many criminal law professors like to begin their course with. And he says, "What is the really fundamental difference between criminal law and other areas of law?" He says it's this: Criminal law involves blame and condemnation. When we punish you with the tools of criminal law, we're not just sending you to prison. We're not just sentencing you to death. We're not just making you pay a fine. We're doing that and we're saying you did something bad. You are a bad person. And it's not just a private person making that judgment, it is society at large. And so the stakes in criminal law are really, really immense.

A couple other things to stress. So as I mentioned a second ago, criminal law uses fundamentally different procedures from other areas of law. And there are advanced courses that you take later in law school called criminal procedure. This class, however, is going to be a class in substantive criminal law. What are the actual rules that if you break them, you will face criminal sanctions? We are going to talk a little bit about criminal procedures, but only to the extent necessary to really understand what the substantive criminal law rules are.

And then in terms of what we're going to cover specifically, we're going to cover mostly what we call the general part of the criminal law. The principles that govern the criminal law, regardless of the particular type of crime involved. So how do we read criminal statutes? What are the basic ingredients of criminal statutes and their basic ingredients of criminal liability and criminal responsibility? How can you be punished for an attempted crime? How can two people be punished for helping each other commit one crime?

And then we will talk about a few specific crimes, namely homicide, theft, and rape, but only because those are really the biggest categories. We're not going to cover a lot of other crimes like arson and things like that. Not because those aren't important, but because it's more important to give you the tools that you're going to need to apply the reasoning of criminal law to other contexts.

Notes

I. Features of Criminal Law

A. Public Law

  • Criminal law violations are considered offenses against the state, rather than offenses against private actors (as is the case in other areas of law, such as torts, property, and contracts).

  • In criminal law, a public actor (a public prosecutor) brings charges to vindicate the public interest.

  • A victim of a criminal law violation can separately vindicate their own personal interests by seeking money damages in a civil action.

B. Statutory Law

  • Criminal law is mostly going to be statutory law, in contrast to other areas of law (like torts, property, and contracts) where much of the law is judge-made law (“common law”).

  • Criminal law is supposed to emerge only from clearly written criminal statutes that put people on notice of what their obligations are.

C. Criminal Sanctions

  • Criminal sanctions, like incarceration or the death penalty, are available in criminal law. This is in contrast to other areas of law (like torts, property, and contracts) in which other sanctions are available, such as injunctions and money damages.

D. Burden of Proof

  • The “beyond a reasonable doubt” standard is used for the burden of proof in criminal law. In contrast, the “preponderance of the evidence” standard, a lower burden of proof than that used in criminal law, is used in other areas of law (like torts, property, and contracts).

E. Blame and Condemnation

  • The stakes in criminal law are immense and involve blame and condemnation.

II. Topics in This Course

  • Substantive criminal law.

  • Some criminal procedure (though only to the extent necessary in order to understand the substantive criminal law rules).

  • Principles of criminal law.

  • How to read criminal statutes.

  • Basic ingredients of criminal statutes and criminal responsibility.

  • How you can be punished for an attempted crime.

  • How two people can be punished for helping each other commit one crime.

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