Sources of Criminal Law: Direct and Indirect
Sources of Criminal Law: Direct and Indirect
A source of law is the origin of legal concepts and principles. In criminal law, sources are crucial due to the principle of legality, which mandates that all crimes and punishments must be clearly defined by law.
Direct Sources
Direct sources are those that create legal norms. In criminal law, the primary direct source is the law, including international treaties when incorporated into domestic law.
Indirect Sources
Indirect sources contribute to the understanding and application of law but do not create it directly. These include:
- Custom: Repeated practices that become legally binding. In criminal law, custom is supplementary and only applicable if it benefits the defendant.
- General Principles of Law: Fundamental legal concepts that apply in the absence of specific laws or customs.
- Jurisprudence: Decisions of the Supreme Court, which interpret and clarify the law. While not a direct source, jurisprudence is vital for understanding legal application.
The Law
In criminal law, the law must adhere to the principles of legality and legal reserve. It is categorized as:
- Formal Law: The manifestation of parliamentary will through constitutional procedures.
- Material Law: Precepts accompanied by punitive sanctions.
Characteristics of Criminal Law:
- Addressed to all.
- Prohibitive in nature.
- Defines criminal actions and their corresponding sanctions.
Custom
Custom is a supplementary source in criminal law, except in specific regions where it may be primary. It consists of:
- Material Element: Continuous and constant repetition of actions.
- Formal Element: The belief that these actions are legally binding (opinio juris).
Custom can influence legislation and aid in interpreting legal figures but is not automatically applied.
General Principles of Criminal Law
These principles apply in the absence of law and custom. They are closely linked to general legal principles and can be used in favor of the defendant.
Jurisprudence
Jurisprudence, the body of Supreme Court decisions, is an indirect source of knowledge. It helps interpret and apply the law but does not create it. The Supreme Court’s decisions are binding and correct lower court sentences through cassation appeals.
Note: Findings of fact are not altered by the Supreme Court, and the court cannot address issues not raised in the appeal petition.