Chapter Two: The Criminal Law And Its Process
code of Hammurabi: first written criminal code developed by Babylonia in about 2000
BCE.
lex talionis: punishment based on physical retaliation (“an eye for an eye”)
Mosaic Code: by tradition, the covenant between God and the tribes of Israel in which
they agreed to obey his law in return for God’s special care and protection.
wergild: under medieval law, the money paid by the offender to compensate the victim
and the state for a criminal offense.
oathhelpers: during the Middle Ages, groups of 1225 people who would support the
accused’s innocence.
stare decisis: the principle that the courts are bound to follow the law established in
previously decided cases (precedent) unless the law was overruled by a higher authority.
common law: early English law that was developed by judges and incorporated Anglo
Saxon tribal custom, feudal rules and practices, and the everyday rules of behaviour of
local villages. Common law became the standardized law of the land in England and
eventually formed the basis of the criminal law in Canada and the United States. (pg 35
for outline of court system)
Common Law Crimes:
Crimes Against the Person
First degree murder: the unlawful killing of another human being with malice and
premeditation.
Voluntary manslaughter: an intentional killing committed under extenuating
circumstances that mitigate the killing, such as killing in passion.
Assault: the unlawful touching or the threat of such.
Rape: unlawful sexual touching without consent.
Robbery: the wrongful taking and carrying away of personal property from a person by
violence or intimidation.
Incomplete (Incohate) Offences
Attempt: an intentional act for the purpose of committing a crime that is more than
preparation or planning of the crime.
Conspiracy: a voluntary agreement to commit an act using means forbidden by law.
Crimes Against Property
Burglary: breaking an entering a dwelling house with the intent to commit a crime.
Arson: the intentional burning down of a building.
Theft: taking and carrying away the personal property of another with the intent to keep
and possess it. classification of law: (1) crimes and torts (2) indictable and summary offenses (3) mala
in se and mala prohibitum
tort law: the law of personal wrongs and damage, such a negligence, libel, and slander.
indictable offence: a serious offence, such as murder, which carries a serious penalty.
summary offence: a minor offence whose penalty is a maximum of six months in jail or
a fine.
mala in se: crimes that are rooted in the core values inherent in our nature and are
designed to control such behaviours as inflicting physical harm on others, taking
possession that belong to another, or harming another person’s property.
mala prohibitum: crimes defined by current opinion and social values, subject to change.
(guns, drugs, alcohol, etc.)
Functions of Criminal Law:
providing social control: Primary purpose of criminal law, written statement of rules to
which people must conform. folkways: unwritten but generally accepted rules of
conduct. mores: universally followed behaviour.
discouraging revenge: By delegating enforcement to others, the criminal law controls
and individual’s need to seek revenge or vengeance against those who have violated that
individual’s rights. The law shifts the burden of retribution from the individual to the
state.
expressing public opinion and morality: to reflect constantly changing public opinions
and moral values.
deterring criminal behaviour: threat of punishment is designed to prevent crimes
before they occur. This only works for crimes that are thought out beforehand, not
necessarily those that happen irrationally in the heat of the moment. general deterrence:
measures aimed at convincing the potential law behaviour that the pains associated
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