Hindu law

Unrivalled in age and continuity, the Hindu law found in India, Myanmar, Nepal, Pakistan, Malaysia and parts of East Africa is contained in a literature which is vast, complex and seemingly impossible to summarize. Its laws and customs are derived from sages of the past who were themselves taught by a creator, it preaches the birth, death and rebirth of living things, and its precepts cover many more activities than does any secular legal system. In the countries mentioned, however, it governs only the personal and family relations of those involved and its family law has been codified and much amended, especially in India. Nonetheless it can affect the lives of some 450 million people.

Customary laws

In many parts of the world unwritten local or tribal custom sets the standard of behavior and provides for conciliation and dispute settlement. Most of the African countries, for instance, have a formal constitutional and commercial law inspired by French, Belgian or British models but remit the relations between private individuals to the appropriate customary framework.

Part 4

Criminal Law

Crimes are wrongdoings seen from the point of view of the society in which they occur: the convicted wrongdoer may be punished. Torts include the same wrongdoings seen from the point of view of their victim: the wrongdoer may be ordered to pay compensation. Sins include the same wrongdoings seen from the point of view of a faith; they call for repentance and atonement. Thus all three systems agree in condemning the most common acts of wickedness - murder, rape, robbery, violence, theft and the like. Once such acts occur, however, the secular responses seem in practice weak. Relatively few crimes are solved, few criminals convicted. Almost never are they made to compensate their victim.

Nonetheless many societies attach great importance to a system of criminal justice: laws which define crimes and provide the sanctions; procedural rules for establishing guilt in a court; and a set of methods and places of punishment and rehabilitation. Furthermore the types of actions declared to be criminal are, in all major matters, much the same everywhere.

As with the area of the ordinary non-criminal private law, the system in the 'civil law' world has developed from two main sources: first the Napoleonic codes of penal procedure (1808) and penal law (1810), and then the German penal and procedural codes (1871, 1877). A key figure in the criminal procedure of many civil-law countries is the juge d'instruction who supervises the pre-trial stages. The use of a jury is uncommon save for very serious crimes, though Russia is introducing the system. On the other hand the first instance tribunal often comprises one judge and two lay persons, all of whom deliberate together and decide on guilt and sentence. Another common feature (at least in theory) is the presence of the victim as 'civil plaintiff', so that the same court can convict the accused, assess the victim's injury or damage, and order the accused to pay compensation.

Countries of the 'common-law' world began from the English criminal law but, unlike England, now normally have a comprehensive and coherent penal code (the British parliament has never defined murder: this has been left to the courts). A typical feature of these 'common-law' systems is that, for all save relatively minor offences, the decision on guilt or innocence is taken by a jury of lay-persons selected for that case: this has a profound effect on the conduct of a trial and the presentation of evidence. Another feature is that the victim who seeks compensation must start another lawsuit before another court.

Whatever their origin, most legal systems agree on certain basic premises. First, that no one can be guilty of a crime unless the offence is defined as such beforehand, and the conviction arrived at by a lawful procedure. Inherent in this is the requirement of clarity in criminal law, a prohibition against its retrospective effect, and certain notions of 'fair trial' and the availability of legal representation. Second that no one can be prosecuted twice for the same thing. Third that deliberately criminal conduct can be punished although it did not succeed - it is a crime to attempt a crime, or to conspire with others to commit one.

The fourth common premise is harder to explain. The essential ingredients of a crime contain both a factual and a mental element. The first covers certain (not involuntary) human conduct in certain circumstances, and sometimes with certain consequences: for example stealing involves taking someone else's property; on a charge of homicide the prosecution must prove that the victim is dead. The second means that it must normally be shown that the accused deliberately or recklessly did the forbidden act. The important point here is that, as a general principle, mere carelessness (or stupidity) is not a crime calling for punishment, but at worst a tort calling for compensation. Thus if you make off with my raincoat, honestly thinking it yours and not even seeing the risk that it might not be, you are not a thief: you did not deliberately or recklessly intend to take someone else's property. Of course if my name is marked inside it then you may have been careless, in which case you may owe me compensation. But you are not a criminal: stealing is dishonesty and you were (though negligent) perfectly honest. To this general principle there are important exceptions: careless driving is an obvious example and, where death is caused by gross negligence there may some homicide charge less than one of murder. Furthermore in many systems a number of (relatively slight) offences may be committed without any mental culpability at all. The reasons given for this include the need to protect the public and the difficulty of proving any mental element. Examples include the use of unroadworthy vehicles on a public highway.

Most systems accept that criminal liability is not to be imputed to certain classes of people: the very young or persons under severe mental illness. Systems also recognize a number of exculpating or mitigating circumstances such as self-defense, provocation, suicide pacts and the like.

Part 5