The Unoriginal Criminal Law
The death sentence, imprisonmenr and fine are not then created by the criminal law. In this connection, a short comparison between criminal dan civil law makes evident the great dependence of the former upon the latter. That immortal characteristic of criminal law, to which we referred at the outset, stands in very strange contrast to its lack of originality.
The civil law showed, much earlier, an independent poer of developmen. More definite rules relating to marriage (if this is considered to be private law and not, rather, a kind of publick law), buying, excange and even inheritance were able to be devised. Then there arose what, amongst the primitives, corresponded to the beginnings of a criminal law, at first springing from some few customs adapted according to temperament and chance. In fact, the opinion could easyly be maintained that the criminal law developed entirely from the civil law.
"Criminal lae as an institution protected by the state has preceded the civil law everywhere. The citizen sitting as an arbitrator in adispute between two parties has developed into the criminal judge", says Wilhelm Wundt. His opinion is erroneous (we cannot here go into details and the reasons); but it is certain taht private law has influenced criminal law much more strongly than in the reverse case. Even the basic concepts of criminal law relation to guild and sin, which were indeed the fundamental pillars of the ancient criminal law, the law of talion, are said to have been taken over from the civil law. No lesser person than Nietzsche has attempted to show that our high ethical conception of guild has its roots in the law of obligations in the very material relationship between debtor and creditur. It is clearly a continuntion of his thought when W. Wundt says of talion : "It (the lex talionis, as a natural criminal law) is a direct result of the attitude taken by private law, which conditions the original of law, for it is the dirrect application of the principles valid in exchange and buying transaction to the like division between a service and a return service". Here Wundt again presuppoes the thoughts of Malinowski and Thurnwald on reciprocity as a basic principle of law. As an account of the real basic origin of guilt and talion in criminal law we cannot regard these explanations as valid, thought they may be proof of the extent of the influence of civil law on the formation of the basic principles of criminal law.
Speech, as a faitful interpretor of evolution, indicates how late and hesitant was the formation of a more firmly established criminal law. Perhaps it does not seem strange that the early Germans had no word either for criminal law. The word punishment originated in Germany in the fourteenth century, the world crime can first be traced to the eightteenth century, the world crime can first be traced to the eighteenth century. But is it not very remarkable, that even a people with very strong juristic ability, the Romans, only found a technical expression for crime and punishment at a relactively very late date? Mommsen conclude his expotion on the terminology of crime : "it always remains characteristic, how late and with what difficulty the scientific expresion for crime came into existence". And regarding punishment he says: " but even thus conception developed gradually to receive general validity and only later, and then merely as the result of a very unusual transposition, was it received as a generally authentic expression". Greek expression for crime and punishment originate from the priod when their culture was at its height; the ancient Arabs were quite unacquainted with the conception of punishment. In India, there was no distinction between the civil and criminal process and the expression Aparadha (omission) appeared only later. It is good to consider these facts a little. Crime and punishment are for us such everyday and commonplace conceptions that we cannot conceive of our society- and not only ours but any society- without them.
It is the opinion of all those who do not rely upon any particular theory of criminal law that, in punishment, the instrinct of self-preservation prossessed by society is expressed and asserts itself quite instinctively. This is the reason for the immortal characteristic of criminal law. Wherever there is some form of social life, there must be punishment. Great credit is accorded to this apparent instinc of self- preservation. It 'knows' what is good for society, it makes the law as though by itself.
In actual fact, as we have seen, the position is quite different. If in dact the criminal law has its roots in a sort of instinct for self-preservation possessed by society, then it evidence this fact in a very uncertain and hesistant manner. The instinc of self preservation is not capable of finding , by itself, the means to attain the end. It is dependent upon conceptions quite differently conditioned; it is bound by strivings which have nothing to do with it or which reach far beyond it. Every society produces its 'contrary one', and needs and finds means to turn against them. That, however, is only one side of the immortal characteristic of the law of nature which criminal law would willingly validate. We have also recognized the immortal characteristic in the irrepressible instinctual desires of man, which find in it so convenient a safety-valve.
Book of criminal law that use in this reference :
-Paul Reiwald, SOCIETY and its CRIMINALS. Internasional Universities: Amerika.
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Labels: Civil Law