Understanding Criminal Law: History, Principles, and Evolution

Posted on Mar 30, 2025 in Law & Jurisprudence

Criminal Law

Criminal law is a body of knowledge and principles methodically ordered to elucidate the content of norms and institutions. These are grouped to apply to current cases according to strict criteria of justice (Toledo St. Francis of Assisi).

Historical Overview

Criminal Code of the Republic – 1890

Consolidation of Criminal Laws – 1936

Criminal Code – 1940

Constitution – 1988, art. 22, I

Primitive Times

Sociocultural characteristics:

  • Environment of magic and religion.
  • Presence of pests, drought = responses of divine forces.
  • Disobedience led to the collective punishment of the offender = crime and punishment.
  • Penalty = revenge and disproportionate infringement.
  • Revenge: Private, divine, public.

Private Revenge

  • Reaction of the victim, relatives, and tribe.
  • Disproportionality between violation and revenge.
  • Scope of revenge on the offender, relatives, and tribe.
  • Lex talionis = reaction with the identical offense.

Divine Vengeance

  • Influence of religious life in the lives of ancient peoples.
  • Punishment or offerings were used by the priests.
  • Sentencing = cruel and aimed at intimidation.
  • These principles were adopted in Egypt, China, Persia, and by the people of Israel (the Pentateuch).

Public Revenge

  • Appears to give greater stability to the state and security to the sovereign.
  • Penalty = cruel, even in obedience to religious sense (e.g., Greece, the ruler decided in the name of Zeus).
  • In the later stage, it breaks the religious character, transforming the group into individual responsibility.

Criminal Law of the Hebrews

Replacing the lex talionis by:

  • Fine
  • Prison
  • Levy of physical lien
  • Suppress the death penalty for perpetual penalty

Crimes:

  • Crimes against the divine
  • Crimes against similar individuals

Roman Law

  • Division between law and religion.
  • Offenses are divided: breaches of the city and less serious breaches repressed by individuals.
  • Penalty rule becomes public.
  • The death penalty is practically abolished by exile and deportation.

Contributions of Roman Law

Contribution:

  • Establishment of principles on criminal law:
    • Error
    • Guilt
    • Deceit
    • Liability
    • Irresistible compulsion
    • Aggravating, mitigating circumstances
    • Self-defense, etc.

German Law

  • The ancient Germanic law – unwritten laws composed of customs.
  • The law of lex talionis was later applied.
  • Lack of distinction between deceit and guilt.
  • Procedure: Proof of boiling water (ordeals); duels were personal or professional wrestlers.

Canon Law

Contribution and aspects of canon law:

  • Humanization of criminal law.
  • It stressed the subjective aspect of the crime.
  • Proclaimed the equality of men.
  • Sought to ban judicial duels and ordeals.
  • Penalty had a preventive role and regeneration by repentance and purgation of guilt – the Inquisition.
  • Contrary to the death penalty, the offender was handed to the civil power for execution.

Humanitarian Period

  • The period of enlightenment begins the period of humanitarian Criminal Law.
  • Late eighteenth-century saw the reform of laws and the administration of criminal justice.
  • Surge in critical awareness of the problem as a criminal and legal philosophical problem:
    • Basis of the right to punish
    • Legitimacy of the sentence

1764 – Work: Of Crimes and Punishments by Cesare Beccaria

The citizens, living in society, yield only a portion of their freedom and rights. For this reason, penalties cannot be applied to reach the rights not assigned, as in the chaos of the death penalty and cruel sanctions.

  • Only laws can fix the penalties, not allowing the judge to interpret them arbitrarily or impose sanctions.
  • Laws should be known by the people, written with clarity so that they can be understood and obeyed by all citizens.
  • Preventive detention is only justified in the face of evidence of the existence of crime and of his own.
  • All evidence should be admitted in court, including the word of the condemned.
  • Do not justify the punishment of confiscation, which reaches the heirs of the condemned, and the infamous, passed on the family of the perpetrator.
  • Do not allow the testimony of secret torture and interrogation for the judgments of God, which does not lead to the discovery of truth.
  • The penalty should be used as social prophylaxis, not only to intimidate citizens but also to recover the delinquent.