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Chapter 2-9

Sociology 1500 Chapter notes- Ch. 2-9, 11, 13, 14.docx

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University of Guelph
SOC 1500
Andrew Hathaway

Sociology 1500 Winter Semester Chapter 2 The Criminal Law and its Process The Origins of Law In preliterate societies common custom and tradition were the equivalents of law Many customs eventually developed into formal or written law Early Legal Codes Code of Hammurabi the first written criminal code developed in Babylonia about 2000 BC Punishment was based on physical retaliation or lex talionis an eye for an eye However the severity of punishment depended on class standingAnother ancient legal code still surviving is the Mosaic Code of the IsraelitesAccording to tradition God entered into a covenant or contract with the tribes of Israel in which they agreed to obey Gods law in return for care and protectionAlso surviving is the Roman law contained in the Twelve Tables formulates by a special commission of 10 men in response to pressure from the lower classesEarly Crime Punishment and Law The early formal legal codes were lost during the Dark Ages Magic dominated thinking The regulation of crime during the early feudal period involved monetary payments as the main punishments for crimesGuilt was determined by ordeals such as having the accused place his hand in boiling water to see whether God would intervene and heal the wounds This fell out of favour when the Catholic Church decreed that priests could no longer participate In some cases guilt could be disputed with the aid of oathhelpersduring the Middle Ages groups of 12 to 25 people who would support the accuseds innocence Origins of Common Law In England a common law developed that helped standardize law and justice This common law became the foundation for Canadas legal systemCrime and Custom Crimes were viewed as personal wrong and compensation was paid to victims Even for crime but if it was carried out by poison or ambushone can punished by deathA scale of compensation existed for lesser injuries such as the loss of an arm or an eye This scale became the precursor of the modernday criminal fine To a great degree the criminal law was designed to provide an equitable solution to what was considered a private disputeThe Norman Conquest Williams the Conqueror replaced the local tribunals with royal administrators who dealt with the most secular violations The royal judge would decide what to do in each case using the system called stare decisisthe 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 After the Catholic Churchs ban of ordeal King Henry II had juries who were local landholders who decided on the facts of cases investigate crimes accuse suspected offenders and even give testimony thBy the 14 century jurors had become the deciders of fact Eventually the accused was allowed thto use witnesses to rebut charges and by the 18 century they were required to take oathsThe Common Law The common law is meant to apply to people without regard to social differences Common law is judgemade law case law derived from previously decided casesCommon Law and Statutory LawThe common law was a constantly evolving legal code based on legal decisions made from the ground up Common law is still the basis for understanding statutory law todayStatutory laws reflect existing social conditions dealing with issues of morality such as gambling drugrelated offencesThe Development of Law in Canada The early Canadian criminal justice system was influenced by the common law of England Before Confederation in 1867 Canada did not have a standard criminal justice system The military was the first to maintain law and orderThe federal government of British was given the power to create criminal statute law and the provinces and territories were responsible for its administration Parliament codified the CCC in 1892 Classification of Law Law can be divided into 2 broad categories the criminal law and civil law Of all areas of the civil law tort law the law of personal wrongs and damage such as negligence assault is most similar in intent and form to the criminal law A tort is a civil action in which an individual asks to be compensated for personal harm physical or mental cause the actions of another A tort may also occur when behaviour is an indirect cause of injuryA key difference between the criminal law and civil law is that the state has the power to protect the public from harm by punishing individuals whose actions threaten the social order Whereas in civil law the harm is considered private and individuals are compensated for harm done to them by others See table 23 Indictable and Summary Offences Criminal laws can be further classified as either indictable offences or offences punishable on summary conviction An indictable offence is a serious offence such as murder that carries a serious penalty while a summary offence such as loitering is a minor or petty crime for which the penalty is restricted to a maximum of six months in jail or a fine or both See figure 24 Mala in Se and Mala Prohibitum Mala in Se crimes are rooted in the core values inherent in our culture and are designed to control such behaviours as physical harm Mala prohibitum crime involves violations of laws that reflect current public opinion and social values that are more relative in nature Ex drug use Functions of the Criminal Law Criminal law is a written code defining crimes and their punishments They are centralized under the jurisdiction of the federal government1 Proving Social Control This is the first and primary purpose It is a written statement of rules to which people must conform Societies also have unwritten rules of conductordinary customs and conventions referred to as folkways and universally followed behaviour called norms and morals or mores2 Discouraging Revenge The second function of the criminal law is that by delegating enforcement to others the criminal law controls an individuals need to seek revenge against those who have violated their rights 3 Expressing Public Opinion and Morality Criminal law reflects constant changing public opinions and moral valuesThis is seen with mala prohibitum crimes such as traffic law and gambling violations The government has the power to define the boundaries of moral and immoral behaviour through the criminal law Nonetheless it is difficult to control public morality through the law because of the problems associated with 1 gauging the will of the majority 2 respecting the rights of the minority and 3 enforcing laws that many people consider trivial or selfserving4 Deterring Criminal Behaviour Another function is its ability to deter potential law violators The impact of criminal law is felt through news accounts of long prison sentences that perform the function of general deterrencea crime control policy that depends on the fear of criminal penalties such as long prison sentences The specific deterrent power of the criminal law is tied to the power it gives the state to sanction offender It is a crime policy suggesting that punishment be severe enough to convince convicted offenders never to repeat their criminal activity It is based on the principle that an individual can be prevented from committing a crime if the cost outweighs the benefits 5 Maintaining the Social Order In our society by meting out punishment to those who damage property the law promotes the activities needed to sustain an economy based on the accumulation of wealthMaintaining a legal climate in which capitalism can thrive is an underlying goal of the criminal law The Legal Definition of CrimeTo prove that a crime occurred and the defendant committed it actus reus and mens rea must be shownActus Reus It is the criminal act itself For an act to be illegal the action must be voluntary Mens rea To be a crime there must also be the elements of a guilty mind In the legal sense intent can mean carrying out an act intentionally However the definition also encompasses recklessness or negligence Negligence involves a persons acting unreasonably under the circumstances
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