Comparative Criminal Law, Lecture 1 (2016/2017)

Comparative Criminal Law

Lecture 1, 14 February 2017

(R.S.B. Kool, Introduction).

The criminal question

‘the constellation of images, ideas, processes and attitudes towards crime, safety, punishment, control and fear that are fundamental in shaping social control more generally and criminal justice in particular’. The keyword is diversity. This is a very broad definition, it features criminal law as an element of social policy, culture. Law is a living instrument and it’s altering every day, especially in the current period.

We should compare different criminal systems, to classify social (legal) arrangements, to fight ethnocentrism and to gain deeper understanding of one’s own system (Academic incentive). Be curious and willing to learn from others! Crime is an international issue, for example cyber crime. We should secure basic levels of cooperation and face global challenges (Practical incentive). Finally, we have human rights standards (Political incentive).

Differences within criminal law

• Archetypes: civil law vs. common law: one of a kind, sharia law.
• Legal pluralism rules: there are mixed systems.

Research orientations

• Relativist postiiton (contextualisation; qualitative)
• Positivist approach (similarities; quantitative)
• Course focus: comparison on sub-items of an archetypical case executed by ‘arm chair travellers’.

Pitfalls

• Criminological Tourism (‘Cherry Picking’).
• Touching base (relevance of sources/observations): No use of Wikipedia, use legislative sources.
• Law in book vs. Law in action. The law in action may be very different than you may see the regulations in the books. You should bear in mind that not just the Law from the books is important, but also the law in action/practice. 

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