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The Making of Criminal Law: The Role of Case Law in the 19th and 20th Centuries

The Making of Criminal Law: The Role of Case Law in the 19th and 20th Centuries

Author: Aniceto Masferrer
Publisher: Routledge
ISBN: 9781041059455
Published In: November 2025
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

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Contents

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The separation of powers produced by the Enlightenment period reinforced the myth of the “perfection of the law”, with criminal law being dependent on the principle of legality. Demonstrating that this principle has not fundamentally altered judges' methods of interpretation and decision-making, this collective volume explores the role of case law in the making of modern criminal law from the late 19th century to the end of the 20th century. It enables us to gauge the influence of case law developed and to assess the extent to which it contributed to major criminal law decisions and the emergence of model criminal codes.

The book takes a comparative view across various European and American jurisdictions and offers an overview of European civil law traditions along with comparisons from the Americas. The focus is on Western legal historiography, which has hitherto been notably under-researched. The chronological point of departure is marked by the creation of the Supreme Court and the cassation in each jurisdiction. Each chapter contains a short introduction to the role of jurisprudence in the making of criminal law from the 19th century onwards in that jurisdiction, followed by an exploration of the contribution of the legal doctrine of the Supreme Court in the making or development of a particular criminal offence or institution.

The book will be of interest to scholars and historians working or teaching in the areas of legal history, comparative legal history, criminal law and comparative law. It will also be of use to scholars interested in the study of law in different socio-cultural contexts.

1. The Contribution of Case Law to the Making of Western Criminal Law

Aniceto Masferrer

France:

2. Case law in the Court of Cassation: Interpreting Codification, Production, and Physiology of Judgments (1811-1863)

Claire Bouglè-Le Roux

3. French Case Law about the Age of Minority: A Historical Study about the Relationships Between Jurisprudence and Juvenile Delinquency

Jean-Louis Halperin

Spain:

4. The Burden of Proof in the Crime of Adultery in Spain: The Contribution of the Supreme Court (1870-1978)

Aniceto Masferrer

5. Diving into Spanish Legal Dissonance: Honour as a 19th Century Two-Sided Normative Reality

José Franco-Chasán

Portugal:

6. Neither One nor the Other: Gender, Sex, and Marriage on Trial in Portugal during the 19th and 20th Centuries

Maria Clara da Cunha Calheiros Carvalho

The Netherlands:

7. The Dutch Supreme Court on Rape and Sexual Assault between 1886 and 1991

Janwillem Oosterhuis

Austria:

8. Homosexuality in Austrian Penal Law and the Role of the Supreme Court

Martin P. Schennach

Hungary:

9. Judicial Decisions Shaping Criminal Law: Eight Decades of Sedition Cases in Hungary

Emőd Veress and Bence Zsolt Kovács

Denmark:

10. Dolus Eventualis in Danish Criminal Law: The Introduction of a Legal Concept by the Supreme Court

Per Andersen

Sweden:

11. Case Law between the Adoption of Two Criminal Codes, Sweden 1864-1962: The Definition of Rape and Aspects of Criminal Intent

Martin Sunnqvist

Finland:

12. Supreme Court of Finland’s Theft Rulings in the Context of Crises and Modernization

Esko Hakkinen

Russia:

13. Evolution of Slander and Libel in the Russian Empire and Soviet Russia (1870-1970)

Tatiana Alekseeva

USA:

14. Infidelity, Legality, and Southern Jurisprudence: The Newly Established Georgia State Supreme Court and its Contribution to Adultery as a Criminal Offense

Julie Rocheton

Chile:

15. Deterrence and Criminal Law: A First Panorama on the Application of Article 483 of the Criminal Law in Chilean Courts (1878-1887)

Loris de Nardi and María Macarena Cordero Fernández