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Need for Comparative Criminal Law

In its broadest sense, all social science research is comparative. As Durkheim noted: Comparative sociology is not a special branch of sociology; it is sociology itself.1 To the extent that the scientific method depends on comparison, Durkheim is no doubt correct. But comparative criminology demands more than comparison.

Comparative criminal Law is a Part of Criminal Justice System which aims to compare law of different countries worldwide. This studies helps us in determines the similarities and differences in structure, goals and punishment. However, the functions of a criminal justice system can be categorized into policing, adjudication and corrections methods.

The Nation-State And The Universality of The Criminal Justice System

It has become increasingly clear that much of what we call criminal justice depends to a large extent on the operations and structure of modern nation-states. It is the modern nation-state that has given us the tripartite criminal justice system (i.e., police, courts, and corrections) as it is commonly studied today.2

Though it may rest within diverse legal traditions and cultures, this basic tripartite structure is similar in all modern nation-states, and investigations that compare nations do so on the assumption that these nations have similar structures of criminal justice.3

The single most important difference between cultures and nation-states is that nation-states are political entities while cultures are ways of life. Nation-states may be composed of many cultures, as the recent war in the former Yugoslavia attests, and a single culture (depending on how broadly the term is defined) may span several countries (e.g., Roman Catholicism ,Islam, Judaism, American popular culture)

Advantage of Diversity for Comparative Criminology

The greatest advantage—although often considered an impediment—for research in comparative criminology is the great diversity that exists cross-nationally with regard to social, economic, and political indicators. Though their structure and organization may vary, basic social and cultural categories such as family, urban and rural life, and community are universals of human existence, so they may be used as fundamental classifications when comparing one cultural group with another.

The Goals of Comparative Criminology

There are several goals of comparative research in criminology. Some are obvious applications of the traditional canons of the scientific method, and some are unique to the study of crime in an international setting.

Although comparative criminology attends mainly to understanding criminal and deviant behaviours it is manifested globally, these studies will inevitably yield useful insights about the control of antisocial activity. With respect to the scientific import of comparative work in criminology, a few important goals are noted here.
  1. Extending theories beyond cultural and national boundaries
    Comparative research provides an opportunity for criminological theories, which are typically generated within the context of particular nation-states, to be given a wider hearing.4

  2. Assessing the performance of national criminal justice systems
    Another important goal for comparative work in criminology is the assessment of national criminal justice systems. If the various institutions of criminal justice (i.e., police, courts, and corrections) are to work as a system charged with the control of criminal behaviour, there must be some way to assess their performance as an operational unit.

  3. Evaluating national criminal justice policy
    Comparative criminology and criminal justice also promise to yield insights into the efficacy of various policy initiatives. For instance, are high levels of gun violence inevitable in the United States because it harbours a gun culture? Perhaps there are other countries that have a high level of gun ownership but a low rate of gun crime.5 Would the legalization of drugs lead to an epidemic of drug use, as is often argued?

  4. Coordinating the fight against transnational crime
    Another response often provided to the question of Why do comparative criminology? maintains that the globalization of crime, as expressed in the increasingly popular notion of transnational crime, points to the need for a coordinated or transnational criminal justice response. Here the benefits of comparative criminology extend beyond the merely provincial and become more fully universal.6 Central to the prosecution of coordinated efforts, is greater international understanding because the more one knows about another people, society, or culture, the greater the potential for understanding their actions and responses to problems and situations.7

Importance of Studies
This study helps us in knowing different forms and use of punishment across societies, including capital punishment. Comparative research studies the different ways in which execution is carried out across the world including hanging, shooting, beheading, injection, electrocution, and even stoning.

By comparison of different system we can find that in many developing countries such as Iran, Indonesia, Belarus, and many others, that violent methods of execution such as hanging beheading, shooting, and stoning are much more common ways of carrying out the death penalty, and in many cases the only ways.8

The study of comparative analysis of criminal law can be helpful for many people in many way as even many people are more suspi­cious of what goes on when their fellow citizens end up being tried in courts abroad. For example, for legislator, it can be a source of possible approaches to a specific issue or even to the enterprise of criminal law reform and criminal law making in general.

For the Judge, it can suggest different solutions to tricky problems of interpretation.
  • Solves International Problems:
    Comparative criminal law adds an international perspective of understanding of law, including how different cultures and government systems influence how the criminal justice system is institutionalized and played out across the world. This holistic perspective is needed to solve international justice issues.
  • Learn from the Past:
    Learning how criminal justice systems have changed and transformed over time is an important part of understanding why and how the current justice system operates, giving you an understanding of how to avoid past mistakes and an insight into how it is likely to develop in the future.

Methods To Conduct Comparison

This study can take a descriptive, historical, or political approach.10
  1. The first stage for each comparatist must be the study of his own law. Person for the purpose to have holistic perspective about different countries laws must have a good and thorough understanding of their own domestic law.
  2. Comparative law, in its second stage requires the study of some foreign law. The mere reading of a statute or a treatise, or even worse, of a translation, may be thoroughly misleading. Even words of the same language may have different meanings in different legal systems.

While comparative criminology is a growing area of study owing to the influence of globalization and concerns about transnational crime, the relative neglect of systematic comparative work in criminology throughout the 20th century means that the field is still in its infancy. Growth in this promising area of inquiry should be nurtured with a renaissance in theory so that research is driven by theory and not by the mere existence of more data.

  1. ([1895] 1938, 157).
  2. (Newman 1999)
  3. Authoritative discussions on legal traditions, David and Brierley 1985 and Wigmore 1936.
  4. Mueller and Adler 1996.
  5. Killias 1993
  6. Reichel 1994
  7. Moore and Fields (1996)
  9. Philip L. Reichel.Comparative Criminal Justice Systems (4th Ed.). 2005, Upper Saddle River, New Jersey: Pearson
  10. Max Rrheinsten,Comparative law,Its function,Usages and Methods(Vol. 22),1968 Arkasas Law Review
Written By: Harshit And Maryanka

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