Study of constitutional law

Constitutional law is a major focus of legal studies and research. For example, most law students in the United States are required to take a class in Constitutional Law during their first year, and several law journals are devoted to the discussion of constitutional issues.

The Rule of Law

The doctrine of the rule of law dictates that government must be conducted according to law.

Dicey identified three essential elements of the British Constitution which were indicative of the rule of law:

1. Absence of arbitrary power;

2. Equality before the law;

3. The Constitution is a result of the ordinary law of the land.

The Separation of Powers

The Separation of Powers is often regarded as a second limb functioning alongside the Rule of Law to curb the powers of the Government. In most modern nation states, power is divided and vested into three branches of government: The Executive, the Legislature and the Judiciary. The first and the second are harmonized in traditional Westminster forms of government.


Нагуманов Константин

 

Criminal law is the body of law that relates to crime. It regulates social conduct and proscribes threatening, harming, or otherwise endangering the health, safety, and moral welfare of people. It includes the punishment of people who violate these laws. Criminal law differs from civil law, whose emphasis is more on dispute resolution and victim compensation than on punishment.Objectives of criminal law

Criminal law is distinctive for the uniquely serious potential consequences or sanctions for failure to abide by its rules. Every crime is composed of criminal elements. Capital punishment may be imposed in some jurisdictions for the most serious crimes. Physical or corporal punishment may be imposed such as whipping or caning, although these punishments are prohibited in much of the world. Individuals may be incarcerated in prison or jail in a variety of conditions depending on the jurisdiction. Confinement may be solitary. Length of incarceration may vary from a day to life. Government supervision may be imposed, including house arrest, and convicts may be required to conform to particularized guidelines as part of a parole or probation regimen. Fines also may be imposed, seizing money or property from a person convicted of a crime.

Five objectives are widely accepted for enforcement of the criminal law by punishments: retribution, deterrence, incapacitation, rehabilitation and restoration. Jurisdictions differ on the value to be placed on each.

· Retribution – Criminals ought to suffer in some way. This is the most widely seen goal. Criminals have taken improper advantage, or inflicted unfair detriment, upon others and consequently, the criminal law will put criminals at some unpleasant disadvantage to "balance the scales." People submit to the law to receive the right not to be murdered and if people contravene these laws, they surrender the rights granted to them by the law. Thus, one who murders may be executed himself. A related theory includes the idea of "righting the balance."

· DeterrenceIndividual deterrence is aimed toward the specific offender. The aim is to impose a sufficient penalty to discourage the offender from criminal behavior. General deterrence aims at society at large. By imposing a penalty on those who commit offenses, other individuals are discouraged from committing those offenses.

· Incapacitation – Designed simply to keep criminals away from society so that the public is protected from their misconduct. This is often achieved through prison sentences today. The death penalty or banishment have served the same purpose.

· Rehabilitation – Aims at transforming an offender into a valuable member of society. Its primary goal is to prevent further offense by convincing the offender that their conduct was wrong.

· Restoration – This is a victim-oriented theory of punishment. The goal is to repair, through state authority, any injury inflicted upon the victim by the offender. For example, one who embezzles will be required to repay the amount improperly acquired. Restoration is commonly combined with other main goals of criminal justice and is closely related to concepts in the civil law, i.e., returning the victim to his or her original position before the injury.

Selected criminal laws

Many laws are enforced by threat of criminal punishment, and the range of the punishment varies with the jurisdiction. The scope of criminal law is too vast to catalog intelligently. Nevertheless, the following are some of the more known aspects of the criminal law.

Elements

The criminal law generally prohibits undesirable acts. Thus, proof of a crime requires proof of some act. Scholars label this the requirement of an actus reus or guilty act. Some crimes – particularly modern regulatory offenses – require no more, and they are known as strict liability offenses (E.g. Under the Road traffic Act 1988 it is a strict liability offence to drive a vehicle with an alcohol concentration above the prescribed limit). Nevertheless, because of the potentially severe consequences of criminal conviction, judges at common law also sought proof of an intent to do some bad thing, the mens rea or guilty mind. As to crimes of which both actus reus and mens rea are requirements, judges have concluded that the elements must be present at precisely the same moment and it is not enough that they occurred sequentially at different times.

Actus reus

Actus reus is Latin for "guilty act" and is the physical element of committing a crime. It may be accomplished by an action, by threat of action, or exceptionally, by an omission to act, which is a legal duty to act. For example, the act of A striking B might suffice, or a parent's failure to give food to a young child also may provide the actus reus for a crime.

Mens rea

Mens rea is another Latin phrase, meaning "guilty mind". This is the mental element of the crime. A guilty mind means an intention to commit some wrongful act. Intention under criminal law is separate from a person's motive (although motive does not exist in Scots law).


Нургожинова Асель

 

Civil law (or civilian law) is a legal system originating in Western Europe, intellectualized within the framework of late Roman law, and whose most prevalent feature is that its core principles are codified into a referable system which serves as the primary source of law. This can be contrasted with common law systems whose intellectual framework comes from judge-made decisional law which gives precedential authority to prior court decisions on the principle that it is unfair to treat similar facts differently on different occasions (doctrine of judicial precedent).

Historically, civil law is the group of legal ideas and systems ultimately derived from the Code of Justinian, but heavily overlaid by Germanic, canon-law, feudal, and local practices, as well as doctrinal strains such as natural law, codification, and legislative positivism.

Conceptually, civil law proceeds from abstractions, formulates general principles, and distinguishes substantive rules from procedural rules. It holds case law to be secondary and subordinate to statutory law, and the court system is usually inquisitorial, unbound by precedent, and composed of specially-trained, functionary judicial officers with limited authority to interpret law. Jury trials are not used, although in some cases, benches may be sat by a mixed panel of lay magistrates and career judges.

Overview

The purpose of codification is to provide all citizens with manners and written collection of the laws which apply to them and which judges must follow. It is the most widespread system of law in the world, in force in various forms in about 150 countries, and draws heavily from Roman law, arguably the most intricate known legal system dating from before the modern era. Colonial expansion spread the civil law which has been received in much of Latin America and parts of Asia and Africa.

Where codes exist, the primary source of law is the law code, which is a systematic collection of interrelated articles, arranged by subject matter in some pre-specified order, and that explain the principles of law, rights and entitlements, and how basic legal mechanisms work. Law codes are usually created by a legislature's enactment of a new statute that embodies all the old statutes relating to the subject and including changes necessitated by court decisions. In some cases, the change results in a new statutory concept. Other major legal systems in the world include common law, Halakha, canon law, and Islamic law.

Civilian countries can be divided into:

· those where civil law in some form is still living law but there has been no attempt to create a civil code: Andorra and San Marino

· those with uncodified mixed systems in which civil law is an academic source of authority but common law is also influential: Scotland and Roman-Dutch law countries (South Africa, Zambia, Zimbabwe, Sri Lanka and Guyana)

· those with codified mixed systems in which civil law is the background law but has its public law heavily influenced by common law: Louisiana, Quebec, Puerto Rico, Philippines

· those with comprehensive codes that exceed a single civil code, such as France, Germany, Greece, Japan, Mexico: it is this last category that is normally regarded as typical of civil law systems, and is discussed in the rest of this article.

The Scandinavian systems are of a hybrid character since their background law is a mix of civil law and Scandinavian customary law and have been partially codified. Likewise, the laws of the Channel Islands (Jersey, Guernsey, Alderney, Sark) are hybrids which mix Norman customary law and French civil law.

A prominent example of a civil-law code would be the Napoleonic Code (1804), named after French emperor Napoleon. The Code comprises three components: the law of persons, property law, and commercial law. Rather than a compendium of statutes or catalog of caselaw, the Code sets out general principles as rules of law.

Unlike common law systems, civil law jurisdictions deal with case law apart from any precedence value. Civil law courts generally decide cases using statutory law on a case-by-case basis, without reference to other (or even superior) judicial decisions. In actual practice, an increasing degree of precedence is creeping into civil law jurisprudence, and is generally seen in the nation's highest court. While the typical French-speaking supreme court decision is short, concise and devoid of explanation or justification, in Germanic Europe, the supreme courts can and do tend to write more verbose opinions supported by legal reasoning. A line of similar case decisions, while not precedent per se, constitute jurisprudence constante. While civil law jurisdictions place little reliance on court decisions, they tend to generate a phenomenal number of reported legal opinions. However, this tends to be uncontrolled, since there is no statutory requirement that any case be reported or published in a law report, except for the councils of state and constitutional courts. Except for the highest courts, all publication of legal opinions are unofficial or commercial.


Питенко Сергей

 

Criminal law is the body of law that relates to crime. It regulates social conduct and proscribes threatening, harming, or otherwise endangering the health, safety, and moral welfare of people. It includes the punishment of people who violate these laws. Criminal law differs from civil law, whose emphasis is more on dispute resolution and victim compensation than on punishment. Objectives of criminal law

Criminal law is distinctive for the uniquely serious potential consequences or sanctions for failure to abide by its rules. Every crime is composed of criminal elements. Capital punishment may be imposed in some jurisdictions for the most serious crimes. Physical or corporal punishment may be imposed such as whipping or caning, although these punishments are prohibited in much of the world. Individuals may be incarcerated in prison or jail in a variety of conditions depending on the jurisdiction. Confinement may be solitary. Length of incarceration may vary from a day to life. Government supervision may be imposed, including house arrest, and convicts may be required to conform to particularized guidelines as part of a parole or probation regimen. Fines also may be imposed, seizing money or property from a person convicted of a crime.

Five objectives are widely accepted for enforcement of the criminal law by punishments: retribution, deterrence, incapacitation, rehabilitation and restoration. Jurisdictions differ on the value to be placed on each.

Murder is the unlawful killing, with malice aforethought, of another human, and generally this state of mind distinguishes murder from other forms of unlawful homicide (such as manslaughter). As the loss of a human being inflicts enormous grief upon the individuals close to the victim, and the commission of a murder is highly detrimental to the good order within society, most societies both present and in antiquity have considered it a most serious crime worthy of the harshest of punishment. In most countries, a person convicted of murder is typically given a long prison sentence, possibly a life sentence where permitted, and in some countries, the death penalty may be imposed for such an act – though this practice is becoming less common. In most countries, there is no statute of limitations for murder (no time limit for prosecuting someone for murder). A person who commits murder is called a murderer.

Culpable homicide is a specific offence in various jurisdictions within the Commonwealth of Nations which involves the illegal killing of a person either with or without an intention to kill depending upon how a particular jurisdiction has defined the offence. Unusually for those legal systems which have originated or been influenced during rule by England or later by the United Kingdom, the name of the offence associates with Scots law rather than English law. Culpable homicide is usually "killing someone for a reason", i.e. because someone has done something or tried to do something, another person killed him/her. In law, assault is a crime that involves causing a victim to apprehend violence. The term is often confused with battery, which involves physical contact. The specific meaning of assault varies between countries, but can refer to an act that causes another to apprehend immediate and personal violence, or in the more limited sense of a threat of violence caused by an immediate show of force. Assault in some US jurisdictions and Scotland is defined more broadly still as any intentional physical contact with another person without their consent; but in the majority of the United States, and in England and Wales and all other common law jurisdictions in the world, this is defined instead as battery. Some jurisdictions have incorporated the definition of civil assault into the definition of the crime making it a criminal assault to intentionally cause another person to apprehend a harmful or offensive contact.Battery is a criminal offence involving unlawful physical contact, distinct from assault which is the apprehension, not fear, of such contact.

In the United States, criminal battery, or simply battery, is the use of force against another, resulting in harmful or offensive or extreme sexual contact. It is a specific common law misdemeanour, although the term is used more generally to refer to any unlawful offensive physical contact with another person, and may be a misdemeanour or a felony, depending on the circumstances. Battery was defined at common law as "any unlawful touching of the person of another by the aggressor himself, or by a substance put in motion by him." In most cases, battery is now governed by statutes, and its severity is determined by the law of the specific jurisdiction.

Rape is a type of sexual assault usually involving sexual intercourse, which is initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, coercion, abuse of authority or with a person who is incapable of valid consent, such as one who is unconscious, incapacitated, or below the legal age of consent. The term is most often defined in criminal law.

Sexual abuse, also referred to as molestation, is the forcing of undesired sexual behaviour by one person upon another. When that force is immediate, of short duration, or infrequent, it is called sexual assault. The offender is referred to as a sexual abuser or (often pejoratively) molester. The term also covers any behaviour by any adult towards a child to stimulate either the adult or child sexually. When the victim is younger than the age of consent, it is referred to as child sexual abuse.


Сариева Альфия

 

Criminology (from Latin crīmen, "accusation"; and Greek -λογία, -logia) is the scientific study of the nature, extent, causes, and control of criminal behavior in both the individual and in society. Criminology is an interdisciplinary field in the behavioral sciences, drawing especially upon the research of sociologists (particularly in the sociology of deviance), psychologists and psychiatrists, social anthropologists as well as on writings in law.

Areas of research in criminology include the incidence, forms, causes and consequences of crime, as well as social and governmental regulations and reaction to crime. For studying the distribution and causes of crime, criminology mainly relies upon quantitative methods. The term criminology was coined in 1885 by Italian law professor Raffaele Garofalo as criminologia. Later, French anthropologist Paul Topinard used the analogous French term criminologie.

The Classical School, which developed in the mid 18th century, was based on utilitarian philosophy. Cesare Beccaria, author of On Crimes and Punishments (1763–64), Jeremy Bentham, inventor of the panopticon, and other classical school philosophers argued that:

1. People have free will to choose how to act.

2. Deterrence is based upon the notion of the human being as a 'hedonist' who seeks pleasure and avoids pain, and a 'rational calculator' weighing up the costs and benefits of the consequences of each action. Thus, it ignores the possibility of irrationality and unconscious drives as motivational factors.

3. Punishment (of sufficient severity) can deter people from crime, as the costs (penalties) outweigh benefits, and that severity of punishment should be proportionate to the crime.[2]

4. The more swift and certain the punishment, the more effective it is in deterring criminal behavior.

The Classical school of thought came about at a time when major reform in penology occurred, with prisons developed as a form of punishment. Also, this time period saw many legal reforms, the French Revolution, and the development of the legal system in the United States.

Positivist School

The Positivist school presumes that criminal behavior is caused by internal and external factors outside of the individual's control. The scientific method was introduced and applied to study human behavior. Positivism can be broken up into three segments which include biological, psychological and social positivism.

Italian School

Cesare Lombroso was an Italian Sociologist working in the late 19th century who is sometimes regarded as the father of criminology. He was one of the largest contributors to biological positivism and was founder of the Italian school of criminology. Lombroso took a scientific approach, insisting on empirical evidence, for studying crime. Considered as the founder of criminal anthropology he suggested that physiological traits such as the measurements of one's cheek bones or hairline, or a cleft palate, considered to be throwbacks to Neanderthal man, were indicative of "atavistic" criminal tendencies. This approach, influenced by the earlier theory of phrenology and by Charles Darwin and his theory of evolution, has been superseded. Enrico Ferri, a student of Lombroso, believed that social as well as biological factors played a role, and held the view that criminals should not be held responsible when factors causing their criminality were beyond their control. Criminologists have since rejected Lombroso's biological theories, with control groups not used in his studies.

Sociological positivism

Sociological positivism suggests that societal factors such as poverty, membership of subcultures, or low levels of education can predispose people to crime. Adolphe Quetelet made use of data and statistical analysis to gain insight into relationship between crime and sociological factors. He found that age, gender, poverty, education, and alcohol consumption were important factors related to crime. Rawson W. Rawson utilized crime statistics to suggest a link between population density and crime rates, with crowded cities creating an environment conducive for crime. Joseph Fletcher and John Glyde also presented papers to the Statistical Society of London on their studies of crime and its distribution. Henry Mayhew used empirical methods and an ethnographic approach to address social questions and poverty, and presented his studies in London Labour and the London Poor. Émile Durkheim viewed crime as an inevitable aspect of society, with uneven distribution of wealth and other differences among people.