§ 3.01 ORIGINS OF THE CRIMINAL LAW

• Jurisdiction: United States

§ 3.01. Origins of the Criminal Law¹

[A] Common Law

American criminal law is primarily English in its heritage and judicial in its origin. In large measure, the original 13 American states and most later states adopted English law as their own.²

Originally, English criminal law was "common law" in nature. That is, it was judge-made law: The definitions of crimes and the rules of criminal responsibility were promulgated by courts rather than by the Parliament. When American courts and criminal lawyers use the term "common law," therefore, they are describing the law developed over the centuries by English judges and imported to this country. However, the common law of England was reworked by American courts to meet local needs and mores, so that by the turn of the twentieth century this country's common law diverged in some significant respects from its British progenitor.

[B] Criminal Statutes

Inspired by the Enlightenment, there was a movement in eighteenth- and nineteenth-century Europe and United States to shift the locus of lawmaking from courts to legislative bodies. In part, this effort was based on the belief that crimes should be defined by an institution more representative of those being governed than the judiciary.³ The "romance with reason" also inspired reformers of different philosophical stripes (both utilitarians and believers in natural law) to try to codify the criminal law in order to produce "a legislated body of reordered, reformed, and reconceived law" in accordance with their respective principles.⁴

In general, early codification efforts failed. Over time, however, legislatures asserted themselves and enacted penal statutes, initially to supplement, but ultimately to replace, the common law. Today, the changeover is virtually complete. The legislature is the pre-eminent lawmaking body in the realm of criminal law in the United States and England.

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Notes:

^[1] . See generally Markus Dirk Dubber, Reforming American Penal Law, 90 J. Crim. L. & Criminology 49...