Inside Criminal Law

Introduction

Simply put, the criminal law refers to a body of rules which define conduct proscribed by the state since that conduct threatens, harms and jeopardizes public welfare and safety. The criminal law sets to mete out punishment which is to be imposed on individuals who breach these laws. Whereas the civil law may be enforced by private parties, the criminal law is only enforceable by the state.

The purposes of criminal law

The purposes of the criminal law are to ensure: retribution (subjecting criminals to points of disadvantage as a way of bringing about 'the balancing of scales'); deterrence (through the imposition of sufficient penalty so as to discourage the offender from taking part in a criminal offence); incapacitation (by keeping the criminals away from the society, in order to protect it from the criminal's misconduct); restitution (by ensuring the reparations of the victim by the offender through the involvement of state authority); and rehabilitation (through the aim to transform positively, the offender, so that he is able to coexist with the society and to contribute positively to it) (Robinson, 2004).

The two main functions of criminal law

The main function of the criminal law is to protect the society and its social order; and to make the public aware of the legal and the illegal.

The written sources of American criminal law and their purposes

The written sources of the American criminal law are the English common law; the early documents such as the Emancipation Proclamation and the amendments to the American constitution. As already mentioned, the main aim of these provisions is to ensure: socioeconomic equity and national cohesion (Stuntz, 2001). .

Describing how criminal responsibility may be limited

This may happen when a person is seen to be mentally unstable as a result of mental illness, genetic defects or even mechanical damage of the brain's physiology (for instance, due to an accident). In this case, the person may be rendered non compos mentis.  Criminal responsibility may also be limited in the case of self defense.

Identifying one justification and excuse defense

One of the justifications of defense is the need for self defense, while one excuse of defense is the aforementioned non compos mentis.

Explaining why they are used

Self defense as a form of justification of defense is normally used since it is strongly underpinned by two factors: the dynamic and increasingly expansive nature of crime and man's animal or crude predisposition towards crime and the law, on one hand; and the nature of man which is the need for self preservation, on the other hand.

The excuse defense which is normally used is non compos mentis since as a form of pseudo science, it is always hard to substantiate. The greed for filthy lucre also makes psychiatrists and lawyers ready to adduce twisted constructs before the court of law, for the acquittal of a suspected murderer for instance. Nevertheless, it is important to note that there are genuine cases which are worthy being declared non compos mentis.

The procedural safeguards that protect American Constitutional rights

The procedural safeguards that protect American Constitutional rights are constitutionalism itself, and ensuring that there is separation of power between institutions and arms of the government. This makes it totally impossible for one to withdraw the rights, freedoms and other provisions which are extant in the law. For instance, in the Government of the United States wanted to revoke the right to bear arms as provided for in the second amendment, the motion will have to be debated in the Congress. It is subsequently to be passed by a majority vote in both the Senate and the House, after which it is signed by the President of the United States. Prior to the President's assent, the matter may be considered by the American Supreme Court to determine its constitutionality.