Convergence of Civil Law and Common Law in the Criminal Theory Realm
Dr. Julian Hermida
University of Miami International & Comparative Law Review, Vol. 13, p. 163, 2005
The theory and practice of criminal law in common law and civil law jurisdictions have been traditionally viewed by scholars as distinctive and fairly diverse. The former takes place when the actor lacks mental capacity to comprehend the wrongfulness of his action, as well as when there is a prohibition mistake. The mens rea, or guilty mind, implies that the actor's mental state coincides with the mental state required by the law for a particular offense. Some criminal law comparativists, perhaps betrayed by the apparent similarities, particularly in terminology, have held that simple homicide can be equated with manslaughter and that murder compares to the civil law concept of murder adopted in Spain or, aggravated homicide, as adopted in Italy, France or Argentina, to name but a few. Likewise, voluntary manslaughter committed in the heat of passion equates to civil law's homicide committed in a violent state of emotion; involuntary manslaughter committed by a negligent act can be equated to civil law's negligent homicide; and, involuntary manslaughter caused by a reckless act finds its civil law counterpart in homicides committed with eventual dolus and conscious negligence.
Number of Pages in PDF File: 70Accepted Paper Series
Date posted: June 15, 2009
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