FOUNDATIONS AND FUNCTIONS OF LAW
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Provides funding for criminal justice agencies
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Creates criminal laws
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Determines sentencing guidelines
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Pre-Historical Era (Earliest History-2000 B.C.)
 Societies based upon clans, tribes, or kinship
 Customary Laws based upon social norms
 Informal but effective law enforcement
 Chiefs or elders served as judges
 Use of Irrational justice
 Reliance on religious, ethical, and mystical considerations
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Early Historical Era (2000 B.C.-1000 A.D.)
 Development of Written Codes
 Egyptians, Babylonians, Hebrews
 Greeks and Romans
 Significance of Early Historical Legal Systems
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Establishment of written codes
Emergence of different roles in the legal system
Great Influence on the legal systems of Europe and the U.S.
Influence of Canon Law (church law) on legal systems
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Modern Era (1000 A.D.-Present)
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Renaissance (1300s to 1600s)
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Age of Enlightenment (1700s)
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Reemergence of natural law
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Belief that there is a divine source of law higher than
any other
Absolute and unchangeable law that is applicable to all
people
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Penal Law
 Criminal actions that a society prohibits
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Compensatory Law
 Civil law dispute among private individuals
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Therapeutic Law
 Focus on helping and treating an offender’s criminal behavior
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Conciliatory Law
 Focus on resolving conflict and providing a winning outcome for
both parties
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Code law systems
Developed from Roman and Napoleonic
Codes
Features
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No judge-made law
Emphasis on the rights of the victimized community
All laws are written in a complete code
Inquisitorial legal system
Decisions by judicial panels
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Broad ruling documents are interpreted by judicial
review
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Judicial rulings are considered a source of law
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Emphasis on the rights of the accused
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Adversarial legal system
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Decisions by juries
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Civil Law
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Disputes between private parties (plaintiff and defendant)
Standard of persuasion is Preponderance of the Evidence
Both parties may be at fault (contributory negligence)
Attorneys may represent a client on a contingency fee
Sanctions include monetary damages and injunctions
Criminal Law
 Offenses against society (prosecutor brings the case on behalf of the
government
 Standard of persuasion is Beyond a Reasonable Doubt
 Defendant has the right to counsel
 Sanctions include fines, probation, or jail/prison time
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Substantive Law
 Defines the acts that are crimes
 Defines the penalties for criminal acts
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Procedural Law
 Defines how a case must be processed
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Attorney appointment
Jury selection
Evidence admissibility
Criminal investigation
Sentencing
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Common Law
 Based upon a community’s norms and values
 Applied through stare decisis, or application of prior judicial
rulings to similar cases
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Constitutional Law
 All other laws must comport with the U.S. Constitution
 State laws must also comport with that state’s Constitution
 Constitutionality determined by appellate judges
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Statutory Law
 Written laws enacted by legislative bodies
 Encompasses almost all U.S. criminal laws
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Case Law
 Judges create law by deciding constitutional law issues
 Judicial policymaking
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Administrative Law
 Federal and state agency regulations have the force of law
 Published in the Federal Register
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Degree of Evilness
 Mala in se: action that is evil in and of itself
 Mala prohibita: action that is wrong because of a law prohibiting it
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Offense Seriousness
 Felonies
 most serious offenses
 include possibility of imprisonment for over one year
 Misdemeanors
 lesser offenses
 include possibility of imprisonment for less that one year
 Petty Misdemeanors
 potential sentence of fines only
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Mens rea
 Criminal intent or motivation
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Actus reus
 Criminal act
 Does not always have to be completed
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Concurrence
 Mens rea and actus reus must be present at the same time
 Defendant must have criminal intent and must act upon that intent
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Conspiracy
 Two or more people form an agreement to commit a crime, and
 commit an overt act toward the completion of the crime
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Solicitation
 One person tries to persuade another to commit a crime on their
behalf
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Attempt
 A crime is started, but is not completed
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Justification Defenses
 The defendant’s actions were not legally wrong
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Excuse Defenses
 The defendant’s actions were legally wrong, but an
extenuating circumstance excuses the action
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Self-defense
 A person may use necessary force in an attack
 The person cannot be the initial aggressor
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Necessity
 A person may commit a criminal act to save himself
from forces of nature
 Example: hikers break into a cabin to save themselves
from death in a snowstorm
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Duress
 A person commits a crime due to threat of bodily harm
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Entrapment
 A person commits a crime that was initiated by another person
 The person who committed the crime would not have done so otherwise
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Infancy
 A person who committed a crime was too young to form criminal intent
 Minimum age is set by statute
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Insanity
 A person was unable to form criminal intent due to mental illness
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Intoxication
 A person was unable to form criminal intent due to involuntary intoxication
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Alibi
 A person could not have committed a crime because they were somewhere else
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Classified by the FBI’s Uniform Crime Reports
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Crimes against Persons
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Crimes against Property
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Crimes against Public Order
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Other Offenses
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Aggravated Assault
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Murder and Nonnegligent Manslaughter
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Forcible Rape
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Robbery
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Larceny/Theft
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Burglary
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Motor Vehicle Theft
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Arson
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Breach of the Peace
Fighting/Affray
Disorderly Conduct
Public Drunkenness
Unlawful Assembly
Carrying Weapons
Obstructing Traffic
Animal Abuse
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Crimes against Public Welfare
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Crimes against Public Morality
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White Collar/Corporate Crimes
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Modern Crimes
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Crimes Against the Government