We talk about common law a lot, discussing various cases or abstract concerns with more or less (typically less :D) expertise, so why not take a problem from the continental system, make a European switch and allow our common law grown members to have some fun on foreign ground? ;)

The subject will be criminal norm - a legal subject technically, but very much socially valid. Per the typical statute, it goes like, "Whoever does X shall be liable to the penalty of N years in prison."

In the Polish field of science, two main universities (Jagiellonian in Cracow, and Warsaw University) have spawned two opposing schools of thought. Cracow says criminal laws do not actually forbid anything, they merely lay down the penalty for what is already forbidden. Warsaw says criminal laws stating penalties are of themselves prohibitions.

There is a number of historical causes, as well as a number of consequences. I wouldn't like to go too deep in them, so let's just say the main argument in favour of criminal laws being prohibitions is that, after all, the lawmaker is attaching a penalty to a proscribed act, therefore he's outlawing it. Another one is that there are many offences which are only addressed in the criminal code and not forbidden anywhere in the constitutional legal sources (not in the constitution, not in the statutes, not in international treaties etc), e.g. incest. Incest is only ever addressed in the law which prescribes a penalty for it, but nowhere else.

In turn, historical arguments show that criminal laws generally specify penalties that people "incur" for their acts. Guilty/innocent is still believed to be a declaration of fact, not a decision creating a new reality. Similarly, the number of years in prison or the amount of fine used also to be regarded as a declaration by the court of how much a criminal deserves for his action. Also, "whoever kills a man shall be liable to the penalty of no less than 8 years in prison, or 25 years, or life imprisonment," (art. 148 of Polish criminal code) doesn't say, "killing is hereby forbidden and therefore whoever kills a man shall be liable etc etc." It looks more like an establishment of penalty for something which is already found wrong to do.

You could say it doesn't matter in practice (that much), but perhaps that would be a good reason to discuss it just for the sake of some exercise then. ;)

So, do you think a criminal statute establishing a penalty for an act already prohibits that act... or does it merely affix the penalty to something which is already outlawed?

I'm not stating my opinion yet. I'll just say I don't hit either extreme. ;)

My only experience with law is one required undergraduate course and working for lawyers but I of course have an opinion.

Basically or do I mean 'generally speaking' believe that a criminal statute establishing a penalty for an act merely affixes the penalty to something which is already outlawed. Society which is made up of a bunch of individuals decides that certain things are harmful to it. Stealing, murder, fornication, libel, etc. So if popular opinion can't stop the harmful behavior they, as a group, attach a penalty. At least this would be true in anything resembling a democracy.

In a dictatorship or Autocracy laws might be made that prohibit an act.

@Nakia:
So your saying it depends on the system of Government more then the law itself?

@Nakia:
So your saying it depends on the system of Government more then the law itself?

I am saying that in a democracy laws normally reflect what society in general believe to be wrong but in an Autocractic government laws may reflect what the government feels is in its best interest.

I am saying that in a democracy laws normally reflect what society in general believe to be wrong but in an Autocractic government laws may reflect what the government feels is in its best interest.Which is not, of course, to say that this type of thing doesn't happen in democratic governments, too, from time to time...

(Although, admittedly, not as often.)

So, do you think a criminal statute establishing a penalty for an act already prohibits that act... or does it merely affix the penalty to something which is already outlawed?

My :2c: here is that an act may be prohibited or not in advance. But the minute you affix a penalty to it, you are explicitly saying that the act is prohibited. Otherwise, why affix a penalty?

I am saying that in a democracy laws normally reflect what society in general believe to be wrong but in an Autocractic government laws may reflect what the government feels is in its best interest.

I am cynical enough to say that the same goes in a democracy. Of course, in a democracy politicians have to worry about re-election, so they have to be more careful about which laws they pass. Which is usually an advantage, though not always (they may refrain from passing a beneficial but unpopular law).

My :2c: here is that an act may be prohibited or not in advance. But the minute you affix a penalty to it, you are explicitly saying that the act is prohibited. Otherwise, why affix a penalty?

That's the point. Perhaps the act sucks, it's immoral, low, well... violates your other laws especially? Every normal person knows it shouldn't be done and yet some do it, so you affix a penalty.

Or perhaps criminal norms are the true sources of prohibition, as far as criminal penalty goes? Maybe it doesn't have to be wrong or anything - merely affixing a penalty and publishing it makes it punishable?

I'm kind of in the middle here. I think that the penalty provides affirmation that the act is outlawed, and it is often the only means to show that the act is outlawed, but there are underlying principles involved (societal values and morals, for example) which implicitly prohibit the act.

I think it entirely depends upon the culture. Here in the US we tend to assume that illegal=prohibited, and that seems to work for us. Other contries may assume prohibited=>illegal, depending on how their society views such things as government, law, and the development of both.

And your own, personal view would be...?

Lol, honestly? My personal view is that it doesn't matter. The two tend to go hand in hand and neither necessarily match with morality. Essentially, in a D&D sense, I'm somewhere between Neutral Good and Chaotic Good. If I see something that I think is right and illegal, I'll still do it, and if I see a law that I think is wrong, I'll speak up against it. Similarly, if I see something that is prohibited or forbidden by society and is right, I'll do it (and tell everyone who asks why I'm doing it), and if I see a social requirement or constraint that I think is wrong, then I'll speak up against it (and again tell everyone who cares why).

As I said, however, here in the US, we tend to see illegal=prohibited, meaning neither one really causes the other, but they tend to go hand in hand. Historically, though, it goes both ways. Drugs were made illegal in the US before they were socially prohibited, and prostitution was socially prohibited before it was criminalized. There's no overarching rule.