Sources of the Criminal Law

As stated earlier, there are criminal statutes both at the state and federal level.  These laws are thought to express the will of the people and arose out of what is referred to as the common law:

That which derives its force and authority from the universal consent and immemorial practice of the people. The system of jurisprudence that originated in England and which was later adopted in the U.S. that is based on precedent instead of statutory laws. 

The notion of stare decisis is very much a part of common law and basically means that “we will stand by the decision of others.”  So too are the terms mala in se (crimes that we all agree are egregious behaviors and deserve strict punishment, such as murder, rape, assault, etc.) and mala prohibitum (behaviors that are prohibited by law but are not as serious as the former and thus change over time to reflect the times, such as so-called victimless crimes like consuming alcohol, drug use, prostitution, gambling, etc.). 

A second source of law is referred to as case law.  Judges continually decide on cases as criminal offenders are processed through the court system.  Often judges are seen as overreaching, or going beyond the intent of the substantive criminal law.  Nevertheless, when an attorney is preparing a case, he/she usually looks not only at the actual wording of the statute, but will examine the case law (that established by jurisprudence) to see how the law has been applied or interpreted by the judicial system. 

A final source of law is constitutional law and is embodied within the Bill of Rights and the Fourteenth Amendment of the U.S. constitution.