1. What is “criminal law”?
Criminal law is public law passed by the federal, state, or local government. It restricts or requires affirmative conduct of its citizens under the threat of prosecution. These prohibitions may be in the form of a statute, common law rule, regulatory rule or decision, or local ordinance. Criminal laws prohibit conduct that is either considered, “malum in se” or “malum prohibitum”.
• Malum in se – means that conduct is inherently wrong without regard to a statute proscribing the conduct.
⁃ Example: Most people consider murder and theft to be innately wrong or evil without regard to a government’s prohibition of the conduct.
• Malum prohibitum – means that conduct is not necessarily wrong or evil, but it is made illegal based upon a law.
⁃ Example: A public company’s failure to adequately disclose corporate information to the public is made illegal by statute. Without such a statute, it may not be considered inherently wrong.
The authority for each type of law may differ, but generally criminal laws are enforced by the government and exist to protect the health, safety, and welfare of citizens. This includes protecting the property and rights of those citizens. Failing to comply with criminal laws can result in fines or imprisonment.
• Discussion: Do you generally believe that criminal laws are effective at curbing prohibited conduct? Do they effectively protect the health, safety, and welfare of citizens? Does a criminal penalty ever violate the purpose of protecting citizens? With the prison population at record levels in the US, is there a need to reform the criminal punishment system? If so, what are some alternatives that may achieve a similar purpose to the penalty of imprisonment?
• Practice Question: Explain the primary differences between criminal law and civil law?