Week 1 - Allocation of Authority to Define Crimes

What did Rex v. Manley say about what to do with crimes with no statute?

You can be guilty of a crime at common law even if no statute specifically mentions it, where your conduct unfairly harms the public interest.

Facts: Manley told the police a man had hit her and stole from her. Story was untrue.

What is the usage for common law?

Judges can adapt to new situations by creating law despite no statute.

Why did common law tradition decline?

Large body of precedent built up, shift from courts to legislature

What is meant to punish criminal conduct contra bonos more et decorum?

Any conduct that is contrary to good morals or decency

What is the principle of legality?

Cannot punish for a crime unless law says so

Why Manley is a problem under the legality principle

judges defined crime by using broad common-law ideas, instead of applying a clear statute

What does nullum crimen, nulla poena sine lege mean?

“no crime, no punishment, without law.”

According to legality, who should be defining crimes?

Legislatures

What are the two important features of legality?

1. A cluster of ideas, not a single strict rule. This leaves room for interpretation by courts.

2. Focus on how crimes get defined (who and when), not what behaviors are criminalized.

Why common law still plays a huge ongoing role in modern criminal statutes

1. Courts use common law rules to interpret or fill in those statutes

2. Statutes often copy common law terms

What is the “general part” of criminal law? And what is it based on ?

Doctrine applicable to many specific crimes such as self-defense or insanity

Based on common law

Where did legality come from?

Enlightenment, humans as rational

What did enlightenment thinkers believe about crimes?

criminal acts could be avoided by a credible penalty sufficient to outweigh the expected gain from wrongdoing.

In order to work, crimes and punishments had to be spelled out in advance

Who did Enlightenment thinkers identify to assess needs of society?

legislature, Crime definitions must be made before the act (prospective) and by lawmakers (legislative), not by judges after the fact

Do federal courts have the authority to create crimes in the common law fashion?

No must be enacted by Congress

Do state courts have the authority to create crimes in the common law fashion?

In the past, courts had authority to adapt old principles to new situations should need arise, but no longer applicable

What was the modern shift of the reasoning behind legality?

No longer about deterrence, focused on law’s moral integrity, predictability and fairness to D

How does legality help minorities?

rule of law demands clear crime definitions so police can't just arrest based on personal bias or judgments based on race, class, etc.