Abstract:
The separation of powers produced by the Enlightenment period reinforced the myth of the “perfection of the law”, with criminal law being dependent on the principle of legality. Demonstrating that this principle has not fundamentally altered judges' methods of interpretation and decision-making, this collective volume explores the role of case law in the making of modern criminal law from the late 19th century to the end of the 20th century. It enables us to gauge the influence of case law developed and to assess the extent to which it contributed to major criminal law decisions and the emergence of model criminal codes. The book takes a comparative view across various European and American jurisdictions and offers an overview of European civil law traditions along with comparisons from the Americas. The focus is on Western legal historiography, which has hitherto been notably under-researched. The chronological point of departure is marked by the creation of the Supreme Court and the cassation in each jurisdiction. Each chapter contains a short introduction to the role of jurisprudence in the making of criminal law from the 19th century onwards in that jurisdiction, followed by an exploration of the contribution of the legal doctrine of the Supreme Court in the making or development of a particular criminal offence or institution. The book will be of interest to scholars and historians working or teaching in the areas of legal history, comparative legal history, criminal law and comparative law. It will also be of use to scholars interested in the study of law in different socio-cultural contexts.
Table of contents
The contribution of case law to the making of Western criminal law (Aniceto Masferrer)
Abstract:
Criminal case law has been scarcely studied for various reasons. In fact, until a few years ago, no legal historian had set out to study it as an element shaping the criminal-legal system. However, in the last decade some of them began this task and have achieved surprising results, both in terms of the volume and quality of their scientific production. In Spain, for example, scholars have practically completed the study of the entire doctrine of the Supreme Court with respect to the Special Part of criminal codes and are now working on the General Part. This chapter analyzes the importance of case law as a source of law and as an object of legal and historical-legal study and includes an exhaustive description of the results obtained in recent years. In addition, it gives – as an introductory chapter of the whole collective book – a brief overview of the the role of case law in the making of modern criminal law in some European and American countries (France, Spain, Portugal, Holland, Austria, Hungary, Denmark, Sweden, Finland, Russia, Georgia-USA, and Chile), all belonging to the civil law tradition.
Case law in the court of cassation. Interpreting codification, production, and physiology of judgments (1811–1863) (Claire Bouglé-Le Roux)
Abstract:
The criminal case law of the first half of the French 19th century offers a particularly rich field of observation for those wishing to measure the role of the judge, and particularly the judge of cassation. This was a strategic period: it saw the introduction of the codification of criminal law by judges, whose interpretation was in principle constrained by the principle of the legality of offences and penalties. However, in cassation, the judges developed interpretation techniques and a method for giving reasons for their decisions, which enabled them to free themselves from the text where necessary, but also to acquire full authority over the trial judges, who were in principle the sole holders of the sovereignty of the trial judges. This study highlights the dual power of the judges of cassation in both legal and jurisdictional terms.
French case law about the age of minority. A historical study about the relationships between jurisprudence and juvenile delinquency (Jean-Louis Halpérin)
Abstract:
France is reputed to be one of the first countries in the world to have adopted a penal code, first in 1791 and then in 1810 with the Napoleonic Code, which remained in force until 1992. However, these codes should not overshadow the role of case law, which developed in parallel with the creation of the Tribunal (later the Court) of cassation in 1790. This chapter deals with criminal minority and the application of articles of the Penal Code providing for two distinct regimes depending on the discernment of minors under the age of 16. In doing so, it shows how the Court of cassation ensured that this question of discernment was always asked and has gradually taken an interest in the choice of reformatories. It gives evidence that, after the 1912 law and a 1945 ordinance closing the houses of correction, the Court of cassation reintroduced the criterion of discernment, and demonstrates that, in the longue durée, French higher judges first acted in the interest of the law, then in the interest of children, with a relative influence of social and doctrinal movements in favor of a more lenient treatment of juvenile delinquency.
The burden of proof in the crime of adultery in Spain. The contribution of the Supreme Court (1870–1978) (Aniceto Masferrer)
Abstract:
This chapter shows that, although the criminal provisions contained in the Codes regulating adultery and de facto union established the essential elements of the criminal type, case law complemented the legal regime by applying these precepts ad mentem legislatorem in specific cases, some of which were difficult – if not impossible – for the criminal legislator to foresee. In this sense, the Supreme Court’s magistrates highly contributed to the legal configuration of a crime, the application of which required going beyond what was established by the legal precept. “Going beyond” does not mean contravening or ignoring the precept, but clarifying, developing, and completing certain aspects that required a correct application of the criminal offense described in the legal precept. Although adultery is a crime that has been in force for centuries, the legislator was never fully aware of the complexity involved in proving it. The evidentiary complexity of the expression “yacimiento” (lying/having sexual relations) used in the legal precept to succinctly describe the type of crime (“A married woman who lies with a man who is not her husband commits adultery”) provoked numerous appeals and a large body of legal doctrine on the different ways of proving the existence or not of sexual intercourse, of its imperfect forms, or of sexual relations outside the scope of this particular type of crime or even of criminal law in general. In short, the chapter gives evidence of the relevance of the Supreme Court, whose doctrine greatly contributed to the adultery’s normative configuration.
Diving into Spanish legal dissonance. Honour as a 19th-century two-sided normative reality (José Franco-Chasán)
Abstract:
Law encompasses society’s values, morals, and ways of acting. Those unwritten values can explain why the legal orders of so many countries enormously differ. The rather wide value of ‘honour’ leads us to a manifold outcome. Particularly, caselaw played a very important role in the configuration of honour due to the main contradiction that characterised the duel: a de iure condemnation (through Criminal Codes), and a de facto promotion (through the Code of Honour and social conceptions). Far from acting in a very dogmatic manner, the judges understood the reality of the moment and knew how to read between the lines of what was happening.
Neither one nor the other. Gender, sex, and marriage on trial in Portugal during the 19th and 20th centuries (Maria Clara Calheiros)
Abstract:
This article uses the legal treatment of adultery in Portugal under the 1886 Penal Code (in force until 1982) as a lens to explore broader European shifts in family law, gender norms, and the relationship between law and religion. Despite early 20th-century legislative reforms aiming for gender equality, Portuguese courts continued to punish female adultery more harshly, reflecting persistent traditional and religious influences. Drawing on legal texts, case law, and scholarly literature, the study reveals the tension between progressive legal ideals and conservative judicial practices. It contributes to wider debates on how legal systems mediate social change, gender relations, and secularization processes in modern Europe.
The Dutch Supreme Court on rape and sexual assault between 1886 and 1991 (Janwillem Oosterhuis)
Abstract:
In the Netherlands, sexual morality changed profoundly between the end of the 19th century and the 1970s. To a considerable degree, this changing morality is reflected in criminal legislation, particularly when it comes to adultery, homosexuality, and pornography. In the same period, however, certain articles on sexual morality stayed the same. Between 1886 and 1991, the articles on rape and sexual assault remained unchanged. Only in 1991, when a revision of the Wetboek van van Strafregt (Criminal Code) took place, were these articles revised. This chapter investigates whether the changing public morality is reflected in the decisions of the Hoge Raad, the Dutch Supreme Court, on sexual morality, focussing on rape and sexual assault. Decisions of the Hoge Raad on adultery are almost completely absent, due to the de facto decriminalisation of adultery by the Hoge Raad through a civil law decision of 1883. Apart from this early decriminalisation of adultery via civil law, it appears that the Hoge Raad did not take the lead in adapting the content of criminal law concepts to changing views on sexual morals and marital relations. In view of its function as court of cassation, that is maybe for the better.
Homosexuality in Austrian penal law and the role of the Supreme Court (Martin P. Schennach)
Abstract:
The contribution explores the impact of the Austrian Supreme Court on the interpretation and application of § 129 (1) lit. b of the Criminal Code of 1852. The law criminalized homosexual relations from the latter half of the 19th century until 1971, when it was repealed during the “minor reform of criminal law.” Pivotal judicial rulings of the Supreme Court were forged in the decades around 1900, intricately intertwined with medical and psychiatric discussions. Renowned psychiatrist Krafft-Ebing emerged as a key figure, actively contributing to debates in the field of legal policy. Despite Krafft-Ebing’s influence and that of other medical experts, the Supreme Court diverged from their views. Instead, it adopted an expansive interpretation of prohibited acts, extending beyond mere male-male intercourse or similar acts. The Supreme court stipulated that criminal liability encompassed all interactions between individuals of the same sex aimed at arousing or fulfilling sexual desires. Moreover, the Supreme Court dismissed defense strategies proposed by psychiatric experts, contending that offenders’ mental health conditions did not absolve them of criminal responsibility. Even if the Supreme Court thus deviated from the line of psychiatric science, the Supreme Court aligned itself with the prevailing consensus of the legal academic community. The landmark rulings of around 1900 retained significant influence for subsequent decades. Even as late as 1969, just two years prior to the repeal of criminal liability, the Supreme Court remained steadfast in its established approach, adhering to its prior decisions despite evolving social dynamics and ongoing discussions.
Judicial decisions shaping criminal law. Eight decades of sedition cases in Hungary (Emőd Veress, Bence Zsolt Kovács)
Abstract:
Sedition typically involves actions or speech that incite rebellion against the authority of a state or monarch, or that seek to undermine the lawful authority of the government. This chapter examines the evolution and implications of judicial decision-making on the consistency of criminal law, with a focus on Hungary’s legal history, through significant political changes from the 19th to the 20th centuries. The research highlights the foundational role of Hungary’s highest courts in maintaining legal consistency amidst these transformations, especially in the interpretation of the sedition offence. By delving into Hungary’s transition to a codified criminal framework, exemplified by the Csemegi Code of 1878, to a more politicized judicial approach influenced by Soviet doctrines post-1948, the analysis demonstrates how judicial practices adapted to shifting political landscapes, impacting the uniform application of criminal law. This evolution underscores the difficult interplay between law and changing societal contexts. Through detailed examinations of precedent and the role of high courts, the study provides insights into the broader implications of judicial decisions in shaping legal and societal norms.
Dolus Eventualis in Danish criminal law The introduction of a legal concept by the Supreme Court (Per Andersen)
Abstract:
In 1918, the Danish Supreme Court confirmed a sentence passed by a lower court in criminal case. Through its arguments for the confirmation, the Supreme Court introduced the concept of dolus eventualis, a form of intent, for the first time in Danish law. The chapter argues that the Supreme Court judges in 1918 were likely inspired by jurisprudential considerations of the period within the small Danish jurisprudential milieu, which again was particularly inspired by German jurisprudence. By introducing the not explicitly declared idea of dolus eventualis, the Supreme Court foresaw a change to forms of intent that would be made in the coming Criminal Act of 1930. The concept may very well have been known during the following decades, but it was nevertheless debated within jurisprudence and among criminal law experts and not used again before the late 1970s. What makes the concept of dolus eventualis in the 1918 judgment remarkable is the fact that this concept is the only criminal concept introduced by the Danish Supreme Court in recent times. The chapter explains why this may be the case, due to a Danish legal tradition characterized by a very cautious and conservative court in terms of introducing new concepts or legal ideas in order not to act as a legislative power.
Case law between the adoption of two criminal codes, Sweden 1864–1962 The definition of rape and aspects of criminal intent (Martin Sunnqvist)
Abstract:
This chapter discusses the development of criminal law through case law during the time of the Swedish 1864 Criminal Code. The main example is how rules relating to rape were interpreted by the Supreme Court. The first fully reported Supreme Court case about rape is from 1925. In this case and another from 1927, a heavy burden was placed on a woman to clearly resist the perpetrator, otherwise the crime would not be defined as rape. In 1937, the types of violence relevant for rape were widened. There was at first a hesitation within the courts how to draw the line between more or less lenient violence, but in two cases in 1937 and 1942, the Supreme Court marked a stricter view on rape than had dominated before. The chapter also discusses some types of cases where Supreme Court decisions from the 19th and early 20th centuries are still important.
Supreme Court of Finland's theft rulings in the context of crises and modernization (Esko Häkkinen)
Abstract:
The chapter examines the evolution of the Supreme Court of Finland’s approach to theft cases from the end of the 19th century to the 1970s, a period of rapid economic modernization and significant social change in Finland. General development of criminal justice and penal policy and the special role of theft in it as well as the history of the supreme administration of justice in Finland and previous research on its criminal justice role is depicted. An analysis of Supreme Court theft cases shows that the court actively updated and expanded the definition of theft in response to emerging forms of property crime. This was facilitated by the absence of a clear statutory definition of theft in the Finnish Criminal Code. In contrast to its activity in modernizing the interpretation of the meaning of theft, the court was passive in responding to the major shifts Finnish penal policy went through during the period. Despite the penal policy’s importance of theft as a high-volume crime treated severely by the Criminal Code, the court’s approach to theft cases remained largely unaffected by broader changes in penal policy.
Evolution of slander and libel in the Russian Empire and Soviet Russia (1870–1970) (Tatiana Alekseeva)
Abstract:
This chapter is devoted to the general problem of judicial influence on criminal law modification. The lack of legislative changes may not be directly related to the application of law. From a historical perspective, in Russia, it can be exemplified with slander and libel ("kleveta"). High courts interpreted all elements of this crime, specified details, and even changed their positions on the same matters. Although actus reus was not very far from the legislative wording of kleveta, the interpretation of mens rea finally became imprecise and unclear without bearing high courts’ decisions in mind.
Infidelity, legality, and Southern jurisprudence Title The newly established Georgia state Supreme Court and its contribution to adultery as a criminal offense (Julie Rocheton)
Abstract:
This chapter examines the jurisprudence of the Georgia Supreme Court regarding adultery as a criminal offense during its formative years (1846–1900). It explores how the court navigated societal values, legal codification, and the enforcement of morality while utilizing cases to assert its authority and legitimacy within Georgia’s evolving judicial landscape. Through an analysis of rulings, legislative developments, and contemporary newspapers, it highlights the tensions between codified law and community standards in defining personal behavior as a matter of public concern. By situating adultery laws within broader concerns of public order, gender norms, and racial dynamics, the chapter emphasizes the interplay between legality and cultural values. It reveals how the court’s reasoning aligned with legislative frameworks to crystallize adultery as a distinct criminal offense while negotiating the boundaries between legality and morality. This analysis positions the newly established Georgia Supreme Court as a vital site for reinforcing societal norms and shaping its institutional identity. This chapter provides new insights into Southern legal history, the intersection of private and public spheres, and the enduring influence of moral regulation on the development of American criminal law and jurisprudence.
Deterrence and criminal law. A first panorama on the application of Article 483 of the criminal law in Chilean Courts (1878–1887) (Macarena Cordero Fernández, Loris De Nardi)
Abstract:
The investigation explores the application of Article 483 of the Chilean Criminal Code between 1878 and 1887 that presupposed the guilt of a merchant if his premises were destroyed by fire. The historic context that motivated the inclusion of this regulation is examined, enhancing its deterrent function on frauds in fire insurances. In this regard, the expansion of the insurance industry and the increase in intentional fires at the time made it necessary to introduce a measure that would discourage the fraudulent practices. It should be added that the detection of fires, provoked or intentional, was complex mainly due to the lack of adequate appraisals. Despite the presumption of guilt established by the article, the analysis of the jurisprudence reveals that in practice the presumption of innocence prevailed. The judges only applied this article in very exceptional cases, which makes its ineffectiveness evident. The regulation, instead of being an effective punitive instrument, served to dissuade the merchants from using fire as a solution to their economic issues, demanding that they prove their innocence instead of the authorities proving their guilt. The study offers a vision that on one side reflects that this ruling constituted a legal innovation at the time and on the other, that its introduction in the XIX century codes reinforced the interests of the bourgeoisie, adapting the laws to new liberal ideas, in this case by means of a legal fiction to facilitate the resolution of difficult cases.
Read more here: DOI 10.4324/9781003633082.
