1.0 Introduction
Criminality is one of the most discussed issues in the law departments, chambers and other legislator. For the legislator, the comparative criminal law can be a source of possible approach to specific issues or even to the enterprise of criminal law. But this is different when it comes to the judge; for the judge, it can proffer different solutions to cunning problems of interpretation.
Oddly, it is precisely this critical potential that may well account for the fact that the comparative study of criminal law traditionally has been neglected. In fact, if not in the story, Anglo-American criminal law continues to be regarded as an exercise of the police power of the state, where the power to police is thought to be closely related, even essential, to the very idea of sovereignty. In Blackstone’s memorable phrase, “public police or economy” is “the due regulation and domestic order of the kingdom: whereby the individuals of the state, like members of a well-governed family, are bound to inform their general behavior to the rules of propriety, good neighborhood, and good manners: and to be decent, industrious, and effective in their respective stations.
Foot Notes
The pedagogic potential of comparative criminal law is explored in Richard S. Frase, “Main-streaming Comparative Criminal Justice: How to Incorporate Comparative and International Concepts and Materials into Basic Criminal Law and Procedure Courses,” 100 West Virginia Law Rev7ie7w3 (1998); Markus D. Dubber, “Criminal Law.
1.2 The Argentina Criminal Law
Argentine criminal law, as we now conceive of it, began in the second half of the nineteenth century with the first attempts at enacting a criminal code under the 1853 constitution. The centerpiece of current Argentine criminal law is the Criminal Code (the Código Penal, or CP), which was enacted by the federal Congress in 1e92119.2T1hcode put an end to a long period of debates over criminal law reform that the constitution had man- dated almost seventy years earlier. That period had begun with public discussion within both the federal Congress and the provincial governments of the official draft of a national criminal code.
First draft, known as the Tejedor Code after its author, jurist Carlos Tejedor, was heavily influenced by the Bavarian Criminal Code of 1813 drafted by Anselm Ritter von Feuer- bach. A deeply modiefid version of the Tejedor Code wansalfliy enacted as the refit national criminal code in 1887. Once enacted, the code underwent several reforms and amendments typically in the form of special criminal statutes in only a few years. It seemed that the constitutional ideal of unedifying legislation through the adoption of stable codes had yet to be achieved. Several alternative criminal codes were thus proposed in those years to the Congress and the executive to replace the 1887 criminal code. One of them, the 1891 Criminal Code Draft actually led, in 1903, to an important reform of the 1887 code. Teh 1891 draft had been influenced primarily by the Italian Criminal Code of 1889, also known as the Zanardelli Codee draft then Italian minister of justice, Giuseppe Zanardelli.
The code that the Congress enacted in 192e1n, offered to as the Moreno Code after Rodolfo Moreno (h), the congressman who led the identified enacting process, was meant to capture in a simple and pragmatically oriented text the basics of the Tejedor Code and the 1891 draft like its immediate antecedents, it was the work of no individual draft, but the result of a collective draft process that managed to engage representative members of the different groups whose conflicting views had contributed to the instability of the previous legislative attempts (i.e., scholars with introduction of ilegal approaches legal, practitioners, and judges and other officials. As its salient antecedents suggest especially the Bavarian Code of 1813 and the Zanardelli Code the 1921 code (the CP) falls within the liberal caotdioifni tradition of the nineteenth century.
It is brief and relatively simple. It established a simple regime of sanc- tions, comprising primarily imprisonment and secondly signifies and incapacitation to perform certain activities (like holding official positions or exercising a given profession). The CP indeed marks the abolition of capital punishment in Argentine criminal law in general, prison terms in the CP were comparatively mild, with a maximum prison term of 25 years only after 2004 reform could the maximum imprisonment time mount up to 50 years in the case of the commission of a plurality of crimes (article 55). It introduced a regime of conditional convictions for the first time offenders (articles 26− 28) and of freedom on parole (or conditional freedom) for the last third of the sentence (articles 13− 17). The Constitution and the Criminal Law (Judicial Review and Juries) Argentine law is based on its 1853 written constitution, which was modeled after the U.S. Constitution.
Very roughly, the Argentine constitution is a nineteenth-century liberal constitution, establishing a government in three branches though more biased toward the executive than its American model and a strong set of individual rights of liberal and republican lineage. Laws are passed primarily by the federal Congress, and in the le- gal domains of common jurisdiction (i.e., civil, commercial, labor, and criminal law) it has done so (observing a constitutional mandate) by adopting national codes. Argentine law thus combines an American-like constitutional law with no constitutional legal codes of a civil law tradition. As is the case under its American model, Argentine constitutional law establishes a system of diffused judicial review, under which each and every judge, in any judicial case, has the power to evaluate the constitutionality of the applicable law and to refuse to apply it if it is found unconstitutional. My impression is that there have been only a few sustained declarations of unconstitutionality in the domain of substantive criminal law dur- ing Argentine constitutional history.
Part of this story may be due to a kind of resistance of the courts to declare statutes unconstitutional. This resistance may be exemplified by introducing another feature of Argentine criminal law that is worth comment. Criminal trials are conducted before professional, life-tenured judges, appointed either by the national government through a complex process in which the three government branches intervene or by a provincial government through variable processed in striking contrast with this practice, the constitution states that “every criminal trial shall be decided by juries” (article 118).
Indeed, under the constitution, an express constitutional task of the Congress is that of “promoting the establishment of the trial by juries” (article 24) by adopting the statutes that such a task may require (article 75, section 12). However for more than 150 years of constitutional life, no such statute has ever been passed, although many have been proposed. From time to time a criminal case appears in which the defendant moves for a dismissal on the ground that he or she has a constitutional right to be judged by a jury rather than by the professional judge who is hearing his or her case.
Courts have invariably rejected such motions, typically on the argument that there is no operational constitutional right to be judged by ju- ries; the constitution has placed no term, and therefore, the argument goes, it is for the Congress to determine the proper time to reform criminal procedures by adopting a regime of trial by juries.. That court are prepared to make this argument even today after more than 150 years of congressional inactivity on this issue, I take to be a peculiar feature of Argentine practice of judicial review.
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