Keith Mack
The concept of common law has evolved over time, with English and American law sharing a common root in this area prior to the 18th century. In the 20th century, both the United Kingdom and the United States witnessed a trend of attempting to eliminate undesirable behaviour through stringent law enforcement, resulting in the criminalisation of various personal behaviours. While some states in the US, such as New Jersey, have abolished common law crimes, others continue to recognise them. The elements of crimes are often defined by common law, or prior judicial decisions, and this varies across different states. The federal and state governments have established sentencing guidelines, and participants in a crime are classified into categories based on their level of involvement. The defence strategies in criminal prosecutions vary, including failure of proof, mistakes, and insanity.
| Characteristics | Values |
|---|---|
| Common law offences | Abolished in New Zealand by section six of the Criminal Code Act 1893 |
| Abolished in some US states, e.g. New Jersey | |
| Still recognised in some US states | |
| Found to be unconstitutional by the U.S. Supreme Court in United States v. Hudson and Goodwin, 11 U.S. 32 (1812) | |
| Still enforced for contempt of court and offences tried by courts martial | |
| Criminal behaviour | Previously, undesirable behaviour was targeted, including some sexual practices, gambling, and the use of alcohol and drugs |
| Defences | Failure of proof, mistake of law, mistake of fact, self-defence, defence of property, defence of others |
| Accessories | Guilty of a separate crime |
| Accomplices | Prosecuted independently of the principal perpetrator in some jurisdictions |
| Intoxication | Can be pleaded as a defence for crimes requiring a specific mental state |
| Insanity | Can be used as a defence as an insane individual cannot form the requisite mental state |
| Sentencing guidelines | Federal and state governments have created various guidelines; federal courts use Federal Sentencing Guidelines |
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What You'll Learn
Criminal behaviour definitions
Criminal behaviour is a broad term that covers a wide range of unlawful actions. At its core, criminal behaviour involves engaging in or contributing to activities that violate the law. The specific definitions and categorisations of criminal behaviour can vary across different legal systems, such as common law and statutory law.
In the context of common law, criminal behaviour typically refers to actions that are prohibited and punishable by law. Common law, rooted in precedent and judicial decisions, forms the basis of legal systems in countries like the United Kingdom and the United States. While common law once served as the primary source of criminal law, it has been supplemented and, in some cases, replaced by statutory law.
One key aspect of criminal behaviour in common law is the distinction between principal perpetrators and accomplices. A principal in the first degree is the person who actually commits the crime, while a principal in the second degree, or an abettor, aids, counsels, commands, or encourages the perpetrator in the commission of the crime. Accessories are those who assist before or after the fact and are guilty of separate crimes. To convict an accomplice, prosecutors must establish actus reus and mens rea, proving that the accomplice acted in support of the perpetrator with the requisite mental state.
Defendants facing criminal charges have several defences available to them. Common defences include failure of proof, where the prosecution cannot prove an element of the offence, and various types of mistakes, such as mistake of law or mistake of fact. Other defences include self-defence, defence of property, and defence of others, where reasonable force is used to protect oneself or a third party from injury or felony. Additionally, in certain circumstances, intoxication and insanity can be pleaded as defences, impacting the assessment of an individual's mental state.
While common law crimes have been abolished in some jurisdictions, they continue to be recognised in others. The specific elements of crimes, such as murder, may be defined entirely or partially by common law, with penalties outlined in statutes. The interplay between common law and statutory law shapes the landscape of criminal behaviour definitions and the subsequent enforcement of criminal laws.
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Common law offences
In some jurisdictions, such as New Jersey in the United States, common law crimes have been abolished. In New Zealand, the ability to prosecute individuals for common law offences was abolished by the Criminal Code Act of 1893, with subsequent enactments in 1908 and 1961 affirming this stance, except for contempt of court and offences tried by courts-martial.
In Canada, the consolidation of criminal law in the Criminal Code enacted in 1953 led to the abolition of all common law offences except for contempt of court. Similarly, in England and Wales, there have been efforts to abolish common law offences and replace them with offences defined by statute. This is due to the perception that common law offences are unacceptably vague and subject to interpretation by courts in ways that may violate the principle of certainty.
However, the process of abolishing common law offences in England and Wales has not been completed, and some common law offences remain in place. In certain US states, elements of crimes are still defined entirely or partially by common law. For example, in Michigan, the actual elements of murder and their meanings are set out in case law, even though the penalties are defined by statute.
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Criminal procedure
In the United Kingdom, the 20th century saw the criminalisation of much personal behaviour, including some sexual practices, gambling, and the use of alcohol and drugs. This trend was also observed in the United States, with the notable example of the prohibition of alcoholic beverages from 1919 to 1933.
At the state level in the US, some states have abolished common-law crimes, while others continue to recognise them. For example, in New Jersey, common-law crimes have been abolished, while Michigan's penal code does not define the crime of murder but relies on case law to establish the elements of the crime.
In New Zealand, the ability to be proceeded against at common law for criminal offences was abolished by the Criminal Code Act 1893, and subsequent enactments in 1908 and 1961 affirmed this abolition, with the exception of contempt of court and offences tried by courts-martial.
The legal sovereignty of the states in the US has impeded uniform changes to state laws, but uniform state laws are becoming more common. Similarly, in the UK, the introduction of human rights as a basic element of domestic law and the growth of international tribunals have brought about changes to the common law system. Additionally, English and American law, which share a common root in the common law before the 18th century, are increasingly diverging, with English law showing more similarities to continental European law.
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Criminalisation of personal behaviour
The criminalisation of personal behaviour is a complex and controversial topic that has been the subject of debate among theorists, legal scholars, and social commentators. While some argue for the criminalisation of immoral behaviour, others advocate for a harm-based approach that focuses on the consequences of actions rather than their moral dimension.
The process of criminalisation involves transforming behaviours and individuals into crimes and criminals. Previously legal acts can become criminalised through legislation or judicial decision. However, there is typically a presumption against the retrospective application of laws, and the power of judges to create new laws and criminalise past behaviour is generally discouraged. Instead, the process of criminalisation often occurs through societal institutions like schools, families, and the criminal justice system, which impose social judgments that label certain individuals as "deviant".
The extent to which personal behaviours that are considered morally wrong should be criminalised is a contentious issue. For example, lying or breaking promises are generally not criminalised. On the other hand, some European jurisdictions, including France, have laws that criminalise failing to prevent a serious crime or provide assistance if it can be done without personal risk.
In the context of sexual activities, the Wolfenden report in British law distinguished between public and private acts, making certain acts effectively legal in private settings but illegal in public due to the potential for causing "shock" or "offence" to the public. This approach has been criticised for relying on a shifting body of public opinion that varies across time and place.
The criminalisation of personal behaviour has also been influenced by political developments, such as the American civil rights campaigns and anti-Vietnam War movements, which challenged the role of mainstream criminology in defending the status quo and legitimising state power. Critical perspectives emphasise the selective nature of criminalisation, highlighting how certain behaviours become targeted while other serious social harms are often ignored or practised with impunity.
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Codification of criminal law
Criminal law is the body of law that defines criminal offences, regulates the apprehension, charging, and trial of suspected persons, and fixes penalties and modes of treatment applicable to convicted offenders. A criminal code or penal code is a document that compiles all or a significant amount of a particular jurisdiction's criminal law. Typically, a criminal code will contain offences that are recognised in the jurisdiction, penalties that might be imposed for these offences, and some general provisions (such as definitions and prohibitions on retroactive prosecution).
Criminal codes are relatively common in civil law jurisdictions, which tend to build legal systems around codes and principles that are relatively abstract and apply them on a case-by-case basis. On the other hand, they are not as common in common law jurisdictions. In some common law jurisdictions, the criminal statutes are often simply codifications of the common law, and their provisions are interpreted by reference to the common law. For example, in Michigan, while the penalties for murder are laid out in statute, the actual elements of murder and their meaning are entirely set out in case law.
The codification of criminal law has been a significant project in many jurisdictions. In England and Wales, the Law Commission worked on the proposed introduction of a criminal code from 1968 to 2008. However, due to the strong tradition of legal precedent and the often inconsistent nature of English law, the creation of a satisfactory code proved very difficult, and the project was officially abandoned in 2008. In the United States, a Model Penal Code exists, which serves as the basis for the criminal law of many states. Individual states often choose to make use of criminal codes, which may be based on the model code to varying degrees. The American Law Institute's Model Penal Code has stimulated a thorough re-examination of both federal and state criminal law, leading to the enactment of new codes in most states.
The German codes of 1871 (penal code) and 1877 (procedure) provided models for other European countries and have significantly influenced Japan and South Korea. The Italian codes of 1930 represent one of the most technically developed legislative efforts in the modern period. In Western Europe, the criminal law of modern times has emerged from various codifications, the most important being the two Napoleonic codes: the Code d’instruction criminelle of 1808 and the Code pénal of 1810.
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Frequently asked questions
Common law is a shared root of English and American law that was recognised before the 18th century.
In the 20th century, undesirable behaviour was targeted by law enforcement, which led to the criminalisation of personal behaviour such as certain sexual practices, gambling, and the use of alcohol and drugs.
There are several defences available to a defendant in a criminal prosecution, including failure of proof, mistakes, self-defence, defence of property, and defence of others.
Principals are those who actually commit the crime, while accessories aid or encourage the perpetrator without being present at the moment of perpetration.
