Criminal Law

LEGAL DIVERSITY, JUDICIAL INTERACTION AND THE METHODS OF COMPARATIVE CRIMINAL LAW

Dr. Martufi

Why should we even start studying criminal law from a European, Comparative and International perspective? Improvement, harmonization, approximation, … There is a perennial dilemma between harmonization and diversity of law and substantial criminal law in particular: on the one hand, harmonization is useful but criminal law comes from the tradition of each country that differs substantially even in relatively close and similar countries. There is tension between the pursuit of common (minimum) standards on the one hand, and respect for the different legal systems and traditions of states on the other (it is somehow unavoidable). Colson & Field say that ‘The inextricable link between sovereign state, national culture, and criminal justice makes it an area politically sensitive to governance at the supranational level’. In particular, constitutional standards are the relevant.

ones: they establish the limits of criminal law at national level and they cannot be deleted when trying to harmonize the topic at supranational level, also for the political importance. It is important not only for lawmakers but also courts.

When we think about the harmonization of substantive and procedural criminal law, we should keep in mind a couple of questions. Asking both 'can' and 'ought' questions (but always making sure to distinguish between the two) is essential for clear and meaningful discussions on the 'harmonization versus diversity' dilemma that characterizes discussions on supranational law and therefore also about European and International criminal law.

'Can' question: Given the diversity of European legal cultures is harmonization at all achievable?

'Ought' question: If it is achievable, is it also desirable, given the virtues and vices of harmonization and diversity?

'How' questions: If

harmonization is both achievable and desirable, how may it be pursued while respecting diversity? Colson and Field speak of 'intrinsic difficulties' in this regard.

Comparative law deals with classifications. The traditional division is between common law and civil law, but there is also customary law system, muslim law system and mixed law systems. We have to be careful because this typification of legal systems (in a broad sense) into bigger entities according to their general characteristics and legal histories is still useful. The underlying idea that laws of different states, regions, nations, peoples, or cultures can be categorized and generalized into neatly organized theoretical constructs is widespread within the academic study of law.

But can national legal systems really be grouped into major families? There is convergence of legal systems and legal pluralism. There is harmonization due to the interaction between legal systems, also outside Europe (see the new US Penal Code,

influenced by criminal theories from Germany and UK). Jurisdictions in both countries are both not monolithic: there is legal pluralism (increasing importance especially where there are native communities and customary laws, e.g. restorative justice, circles). Despite the evident shortcomings, the legal family classification and the dichotomy does not seem to disappear; there is a role for the concept of legal families, but taxonomic categorisation should not be an end in itself. On the Convergence (and Divergence) of the Civil Law and the Common Law - Merryman Convergence of Civil Law and Common Law is, accordingly, a common topic of discussion among comparative lawyers. The answers to questions about the convergence of legal systems depend in the first instance on the view taken of the meaning and purpose of such convergence. A. Return to the Jus Commune This attractive thesis is based on an interpretation of history widely accepted among legal scholars, particularly in Europe. Prior to the

The rise of the nation-state, so the argument goes, the entire civilized world was governed by one legal system: the Roman-Canonic jus commune. The rise of the nation-state disrupted the jus commune and eventually destroyed it. While none argue for a return to the medieval jus commune, some would support a movement toward a new jus commune.

B. Legal Evolution This thesis assumes that progressive legal change is a natural process whose pace and direction can be momentarily affected by human actions but will, in the longer run, be controlled by larger forces out of human control. Legal systems are more or less developed or mature, standing at different stages of evolution. When they converge, it is because the less developed system is catching up with the more developed one. Civil Law is far older and, in the opinion of many, far more developed than the Common Law. Thus, the process of convergence is one in which the Common Law becomes more like the Civil Law.

C. Natural Law Significant differences

in organizations such as the European Union, requires a harmonization of legal systems. This is necessary to ensure that laws and regulations are consistent across borders and to facilitate cooperation and collaboration between nations.G. Protection of Human Rights The convergence of legal systems also plays a crucial role in the protection of human rights. By establishing common standards and principles, legal systems can work together to ensure that individuals are treated fairly and that their fundamental rights are respected.H. Economic Development Harmonizing legal systems can also contribute to economic development. When laws and regulations are consistent and predictable, it creates a favorable environment for business and investment. This can attract foreign investment, stimulate economic growth, and create job opportunities.I. Legal Certainty Legal certainty is another important benefit of converging legal systems. When laws are clear, consistent, and easily understood, it provides individuals and businesses with confidence and predictability. This reduces uncertainty and promotes trust in the legal system.J. Global Governance In an increasingly interconnected world, the convergence of legal systems is essential for effective global governance. It allows for the establishment of common rules and regulations that can address global challenges such as climate change, terrorism, and cybercrime.K. Cultural Exchange and Understanding The convergence of legal systems also promotes cultural exchange and understanding. When laws and legal principles are shared, it facilitates communication and cooperation between different cultures and societies. This can lead to greater mutual understanding and appreciation of diversity.L. Challenges and Limitations While there are many benefits to the convergence of legal systems, there are also challenges and limitations. Differences in legal traditions, cultural norms, and political ideologies can make it difficult to achieve complete harmonization. Additionally, the process of convergence must be approached with caution to ensure that it does not undermine national sovereignty or compromise fundamental rights and values.M. Conclusion In conclusion, the convergence of legal systems is a complex and multifaceted process. It has the potential to promote fairness, cooperation, economic development, and global governance. However, it also presents challenges and must be approached with care. Ultimately, the goal should be to strike a balance between harmonization and respect for diversity, ensuring that legal systems reflect the common nature of human beings while also respecting the unique characteristics of different cultures and societies.

Most dramatically in the West in the European Communities and in the ECHR, argues for convergence of the legal systems of the member states. Common policies require for their realization similar legal rules, institutions and procedures, and the "harmonization" of the laws of the member states.

G. Simplicity and Certainty In some cases the desire for convergence of legal systems merely expresses a yearning for simplicity. The strategies or modes of convergence of the Common Law and Civil Law fall under three main headings: active programs for the unification of law, the transplantation of legal institutions, and the tendency for nations with similar political, economic and social features to develop similar legal systems-a process that might be called "natural convergence."

A. Unification of Law Of these, the first is the easiest to illustrate because it often is accomplished through the use of international institutions specifically intended to promote the unification.

of law. The techniques of unification of law include supranational legislation and judicial decisionbinding on and applicable within individual states.

B. Legal Transplants Legal transplantation has a long history. Transplantation can occur by conscious choice, as when an independent nationchooses to import a legal rule or institution or code. Frequently the motivation is that of a developing nation wishing to modernize its legal systemby imitating, through transplantation, some aspect of the law of a more developed nation. Legal transplants across the Civil Law-Common Lawboundary obviously lead in the direction of convergence of the two systems.

C. Natural Convergence The notion here is that as societies become more like each other their legal systems will tend to become more alike. Thusmost Civil Law and Common Law nations are western bourgeois capitalist democracies, at least in constitutional form. Much of the movementtoward convergence of the Civil Law and the Common Law is

The impulse toward decentralization is a powerful one, explicitly based on the proposition that local needs and interests are diverse and call for separate local regulation. One interpretation of all this is that an exaggerated emphasis on the state is, after centuries of statism, waning. If the two forces do in fact operate more or less simultaneously, then it becomes interesting to inquire whether they affect different kinds of interests in different ways.

Thus the degree of transnational interest in the matter regulated by the local law is only one important variable in discussing the desirability and the probability of convergence of laws. These forces are constantly at work.

At the national level, the concept of "general principles of law" may refer to Roman Catholic natural law, as in the Austrian Civil Code; it may refer to positivistic principles derived by the methods of legal science, as in the Italian Civil Code; it may refer to the contents of a specific historical document.

as the French Consel d'Etat refers to the Declaration of the Rights of Man and of the Citizen. A serious quest for general principles that transcend the limits of national legal systems had its beginnings in the latter half of the past century, with the establishment of the Societe de legislation comparee in 1869 in Paris. The relevance of the search for general principles of law to a study of the convergence of the Common Law and Civil Law is complex. In brief, the interest in general principles of law both measures the extent of convergence of legal rules and, under appropriate conditions, facilitates further convergence. General principles, when derived from actual legal practice within a variety of systems, have a further valuable function: they demonstrate the distribution of legal authority between local and general interests and thus deal concretely with the problem of how to generalize and, at the same time, to accommodate the increasing trend toward legal pluralism. Legal rules

are what most people think of as law, and a good deal of the work of comparative lawyers is devoted to the description and evaluation of such rules. Much of the concern about divergence of legal systems is phrased in terms of rules, and much of the effort toward unification of law is rule-oriented.45 But there is a very important sense in which a focus on rules is superficial and misleading: superficial because rules lite