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The Evolution Of Criminal Law: From The Common Law To Modern Statutes And The Model Penal Code

4557 words - 18 pages

IntroductionThe history of Criminal Law in the United States does not begin as one might imagine with the creating of our Constitution, nor even with the Declaration of Independence that predated it by more than a decade. Nor indeed does that history begin in the colonial period. Our criminal law finds its genesis in a much earlier period, in the times of Moses and of Hammurabi. The historic path towards our current Jurisprudence then diverges, proceeding from these legal luminaries to the Roman Republic and to the Gauls, Franks and Germanic people who populated the European Continent during the early Middle Ages. Law as it is commonly perceived came to the English Isles with the Angles, Saxons, Jutes and Danes, and lastly with the Norman conquest of William in 1066. In a decisive moment in English Law, King John signed the Magna Carta at Runnymeade in 1215. But what purpose did these new laws and new influences on existing laws serve? What is the Common Law of England that came to be so vital to early American Jurisprudence? Does the common trend towards a Model Penal Code of criminal law stand in contradistinction to the earlier legal forebears, or are these merely codification and evolution of their predecessors?In arguably one of the most influential works to effect American legal thought, Oliver Wendell Holmes (1881) defined the purpose of criminal law in his The Common Law: "For the most part, the purpose of the criminal law is only to induce external conformity to the rule. All law is directed to conditions of things manifest to the senses. And whether it brings those conditions to pass immediately by the use of force, as when it protects a house from a mob by soldiers, or appropriates private property to public use, or hangs a man in pursuance of a judicial sentence, or whether them about immediately through men's fears, its object is equally an external result." And law has as much to do with punishing the wrongdoer as with laying out what those governed should seek to avoid doing. As Sir James Stephen concisely stated in his History of the Criminal Law of England (1883), "The criminal law stands to the passion of revenge in much the same relation as marriage to the sexual appetite."This paper will discuss the historical underpinnings of our current system of criminal law, and the ways in which the English Common Law were co-opted nearly wholesale for use by the colonies following their emancipation from their far-away sovereigns. From there I will discuss our transformation from common law (or lex non scripta, unwritten law) to a more statutory basis (or lex scripta). Finally, I will discuss what lies ahead as more and more states adopt the Model Penal Codes presented by the American Law Institute.History of Criminal LawThe law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must...

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