NCJ Number
64011
Journal
Revue internationale de criminologie et de police technique Volume: 32 Issue: 1 Dated: (JANUARY-MARCH 1979) Pages: 11-20
Date Published
1979
Length
10 pages
Annotation
SOURCES AND CHARACTERISTICS OF LATIN AMERICAN CRIMINAL LAW POINT TO THE NEED FOR DEVELOPING NEW LAWS SUITED TO THE JURIDICAL PROBLEMS OF THE PARTICULAR CULTURES, ECONOMIES, AND SOCIAL SYSTEMS.
Abstract
MOST LATIN AMERICAN COUNTRIES DREW THEIR LEGAL INSPIRATION FROM ABROAD WHEN THEY BECAME INDEPENDENT IN THE 19TH CENTURY. THE MOST POPULAR MODEL WAS SPAIN, ESPECIALLY THE CODE OF 1848, WHICH WAS INFLUENCED BY FRENCH ECLECTICISM AND BY PELLEGRINO ROSSI. THE PROGRESSIVE, INNOVATIVE BRAZILIAN CODE OF 1830 (BASED UPON THE NAPOLEONIC CODE), ITALIAN LAWS, THE TEJEDOR PROJECT (1865-67), DUTCH LAW, AND EVEN THE CALIFORNIA PENAL CODE HAVE ALSO BEEN INFLUENTIAL. RECENT PROJECTS OF ARGENTINA, GUATEMALA, BRAZIL, COLUMBIA, AND ECUADOR HAVE MADE HEADWAY IN THE THEORY OF CRIMINAL LAW AND IN DEFINING WHAT IS PUNISHABLE BUT HAVE NOT COME TO TERMS WITH THE JURIDICAL CONSEQUENCES OF CRIMES. AT PRESENT, LATIN AMERICANS ARE IN THE PROCESS OF DEVELOPING THEIR OWN IDENTITY AND AWARENESS OF THEIR OWN SOCIOECONOMIC PROBLEMS, AS WELL AS OF THE GAP BETWEEN THEIR ECONOMIES AND THOSE OF MODERN INDUSTRIAL STATES. LATIN AMERICAN COUNTRIES ARE CHARACTERIZED BY LARGE INACTIVE POPULATIONS, A HIGH PERCENTAGE OF CHILDREN IN THE POPULATION (42 PERCENT UNDER 15 YEARS), UNEQUAL DISTRIBUTIONS OF WEALTH, A PRIMITIVE LEVEL OF DAILY WORK AND INADEQUATE WORKING CONDITIONS, RISING CRIME RATES DUE TO THE PROCESS OF SOCIAL MARGINALIZATION, ESPECIALLY IN URBAN AREAS, AND OPPRESSIVE, UNJUST POLICE AND JUDICIAL SYSTEMS. PENAL LEGISLATION IS DECIDEDLY REPRESSIVE, BECAUSE NAIVE LEGISLATORS TRY TO RESOLVE SOCIAL PROBLEMS PUNITIVELY, E.G., THROUGH IMPRISONMENT OF POTENTIAL FELONS BEFORE CRIMES HAVE BEEN COMMITTED. WRITTEN LAW HAS NOTHING TO DO WITH PRACTICE, AND THE CONSERVATIVE MENTALITY OF THE JUDICIAL SYSTEM AS WELL AS THE DOGMATIC TEACHING OF LAW RENDER THE SYSTEM INSENSITIVE TO HUMAN PROBLEMS. NO REAL ALTERNATIVES TO IMPRISONMENT HAVE BEEN DEVELOPED DESPITE THE MODELS SUPPORTED IN CRIMINAL CODES. THE DIVERGENCE BETWEEN APPEARANCE AND REALITY OF PENAL LAW REFLECTS THE GENERAL STATE OF POLITICAL CRISIS. IT MUST BE RECOGNIZED THAT THE COMPARATIVE METHOD OF LEGAL CHANGE DOES NOT ENTAIL SIMPLE COPYING OF LEGISLATIVE MODELS BUT RATHER DEVELOPMENT OF NEW LAWS SUITED TO PARTICULAR JURIDICAL PROBLEMS. NOTES ARE SUPPLIED. --IN FRENCH. (KMD)