Sources of Criminal Law Essay

Custom Student Mr. Teacher ENG 1001-04 25 December 2016

Sources of Criminal Law

A statute is a codified rule or written form of law. A statute identifies a particular rule of law or condition of a particular state or government. Each State has its own constitution; the states constitution and its laws are considered statutes. Generally, statutes are named through numbers or codes.

Example: In Illinois, the definition of a forcible felony is found under : 720 ILCS 5/2-8. 720 is the criminal code, ILCS stands for Illinois Compiled Statutes, 5/2-8 specifies the location of the rule. The term, “Throw the book at you” refers to the book of statutes or book of laws of the state. Throwing the book at you means they are charging you with as many things in the statute book as they can.

Statutes define everything we do in government, they are the laws passed by our representatives in congress or the state senate. These laws deal with everything from crimes, to taxes, to how to get a speed bump put in on a county road. Statutes are rules of law enacted by government and can be challenged as violating one or more of your constitutionally protected rights.


Common law comes from the old English system of law we copied here in the US. Common law is the practice of enforcing rules we have followed in the past.

Common law is defined by cases through the idea of precedent. Precedent is simply applying the same rule that did before. Citing precedent is like saying; “you did this before, so do it again.”

Example: Common law is the same idea as most parents employ with their kids. If you punished one child for biting a classmate by sending them to their room, you will also give your next child the same punishment if they bite a classmate. This is because historically, the punishment for biting was being sent to ones room. Thus, that punishment becomes the common law or common rule.

The concept of Stare Decisis adds another element to common law. Just like at your home with your kids, the courts can change the rules on us. However, the only court that can change the rule is the highest court to have addressed the issue. Basically, add chain of command to precedent.

Example: If the Supreme Court of the US (highest Court in the entire US) makes a rule: such as the rule requiring all arrested person to be given Miranda rights, NO other court can change that rule except the US Supreme Court. Therefore every state has to follow that rule!

Stare Decisis goes further though: If the US Supreme court decides NOT to address that issue and the highest court to hear the case was the Illinois Supreme Court, ONLY the Illinois courts have to follow the rule. This system goes all the way down to the courts in your area. If no courts have ever issued an opinion regarding the issue in the case at the district (trial court) level then they can apply any rule they see fit.

How does this work?

Statutes say what the rules of law are, Common law or case law defines how they are applied.

Example: The constitution is a statute and this 2nd amendment says “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

The statute can be read many different ways: Scholars debate whether the right to bear arms is a right you have all the time as a citizen or only in connection with militia service

Common law or Case Law defines what the statutes mean. As recently as 2008, the Supreme Court was defining what the words of this statute (2nd Amend.) mean, the Supreme Court held, “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes” District of Columbia v. Heller, 554 U.S. 570 (2008).

Our laws come from both Common Law and are made up by statute: Many of our laws come from common law and are then “codified” (formally written) into statutes. For example, most rules of evidence in a court room are defined by common law but have been “codified” into formal statutes like the Federal Rules of Evidence. The concept of hearsay came from the common law of England.

Requirements for a criminal Act

Statutes define everything about a law. They lay out the Elements of a Crime.

Elements of a crime are the specific conditions that need to be satisfied to be found guilty of a particular crime. Elements may include a person’s state of mind or mens rea. For example: to commit the crime of 1 degree murder (every state defines things and terms things slightly differently) most states require that the State prove the accused intended to commit the crime. To do this, some amount of evidence must show that the persons action were not accidental but intentional. Therefore the persons intent is said to be an element of the crime.

Other elements of the crime of murder include: a dead body.

Motivation or motive is NOT an element of a crime because motive is not a condition that must be met to commit the act. You don’t have to have a reason to kill someone

Due Process

The idea of Due Process comes from the 5th and 14th amendments of the US Constitution. The 14th Amendment applies the right to Due Process to every state and any law enacted by the states.

Due Process is simple. It means that the government cannot take anything from you; not your house; not your liberty; not your life; not a single cent without affording you the right to process of law.

Process of law can be very broad; it can mean a criminal trial, an administrative hearing or anything in between. This is why you can contest every ticket you ever get including speeding, jaywalking, or even code violations.

This right says no citizen can have anything taken from them by the government without the right to their day in court.


District of Columbia v. Heller, 554 U.S. 570 (2008).

Free Sources of Criminal Law Essay Sample


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