The presence of law is probably the most important societal entity we have in the world. Apart from maintaining order, the law is the foundation of justice and amicable coexistence between people in different societies and communities. The law is as old as Religion or the Bible. For Christians, the law existed since the Old Testament and was still present during the New Testament. Like any other phenomenon that is intricate to the life of a man or human beings, the law underwent modifications and different adaption models in various communities and societies. There are law statutes that are almost identical in most countries of the world. Still, others are quite diverse among different countries. In the US, different states have different law statutes. For instance, while some states have legalized prescribed usage of Marijuana, others still forbid the act. In addition, the statutes that some States use have shown disparity with the historical common law.
Historical Common Law
Common law has its origin embedded on how the law was practiced in Europe as early as the 16 th Century. Rudimentarily, the common law used comparative analysis of cases and the previous principles applied in solving different cases. For instance, when studying the law of torts, there is a huge reference of how different principles were applied to different cases and how decisions were made. This is the basis of historical common law. Usually, the historical common law can apply when, for instance, a judge has a case and then they analyze the offense committed by the defendant with the aim of establishing the category it lies. If it happens that the case is a tort, for example, the judge can review previous cases that were similar to this one and then apply the same principles to reach a verdict. The historical common law is widely practiced in Europe and some Commonwealth countries ( West Group, 2017).
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South Carolina Statutes
As much as the law has undergone a lot of evolution over the years, so has crime and criminal acts. What could have been perceived simply murder in the past has evolved to be classified as manslaughter or murder with passion. Therefore, the law has had to be modified to address all criminal acts regardless of their attachment to historical common law. While South Carolina residents are some of the friendliest people in the country, there are also high rates of violent crimes reported in the state as well. South Carolina’s criminal laws are comprehensive in covering unlawful conduct ranging from the standard physical crimes like theft, kidnapping, and murder to more complicated crimes like computer crime, tax evasion, and conspiracy.
In the US, 32 states have and apply death penalty laws while 18 states have completely banned capital punishment. South Carolina is one of the states that have capital punishment. Capital punishment is essentially the death penalty that is applicable in cases where the defendant is found guilty of murder. However, several segments pertain to the Crimes and Offenses statute in South Carolina. Indeed, various sections of the 16 th statute (Title 16) and chapter 3 of the South Carolina Code of Laws Unannotated define different acts of murder and the punishment imposed on each; including capital punishment (West Group, 2017). For this discussion, I will comparatively analyze the Crimes and Offenses statute of South Carolina and capital punishment together with the historical common law.
Comparison and Evident Changes
Under the historical common law, murder was perceived as ‘unlawful killing through criminal act or omission of a human by another human with malice aforethought’ (South Carolina Legislature, 2001). The definition was rather simple and not very concise about the parameters and other considerations surrounding the act of murder. This is because crimes committed when the common law was widely practiced were not as sophisticated as they are today. According to the South Carolina statute, definitively, ‘Murder pertains the loss of another person’s life in connection with any criminal sexual conduct, burglary, armed robbery, kidnapping, larceny with use of a deadly weapon, drug trafficking, poison, and physical torture during commission of a drug trafficking felony’ (South Carolina Legislature, 2001).
The statute further elaborates the aspect of murder by stating that “Prior murder conviction; dismemberment of a person; knowingly created great risk of death to multiple persons in public place; for money or monetary value; judicial officer, solicitor, or other officer of the court (or formers) because of exercise of duties; agent/employee of another; law enforcement officer, peace officer, correction employees, fireman (or formers) related to duty; family members of abovementioned; multiple victims; victim is a child 11 or under; killing of a witness; killing by mob, lynching; killing during a duel.” (South Carolina Legislature, 2001). This is a very comprehensive definition of how murder is perceived by the law of South Carolina today as compared to how it was perceived historically by the common law. It is important to understand that the definition of murder in this statute is usually regarded when the imposition of capital punishment is under consideration.
According to Blackstone, murder in common law was identified as a public wrong. It was considered as malum in se , which is essentially an evil act in itself. For this reason, murder was murder in historical common law and did not require justification of detailing. This is one imminent difference between the murder statute of South Carolina and historical common law. The particularity in defining murder as evidenced in the South Carolina statute is a result of the evolution of the murder crime over the years. There have been issues that surround a murder today that one can kill someone and still be exonerated depending on a number of factors. This is not the case with the historical common law model. It is also because of this evolution in criminal acts that most States in the US adopt statutory laws instead of common law because finding previous cases that perfectly match actual court cases can be very difficult.
Another difference that can be noted between the South Carolina murder statute and the historical common law is the ‘mitigation section’ of the statute. This section was not vibrantly incorporated in historical common law. In SECTION 16-3-20, 12 (b) of the Crimes and Offences statute of South Carolina, there is an elaborate enlistment of mitigating circumstances to a murder. Some mitigating factors include “The murder was committed while the defendant was under the influence of mental or emotional disturbance” and “The defendant was an accomplice in the murder committed by another person and his participation was relatively minor.” (South Carolina Legislature, 2001). Again, these mitigating factors were not given a lot of attention in the historical common law as they are today. The reason is still that the elements of the crime have evolved over the years.
For comparison reasons, it is also important to shed some light on the similarities between the South Carolina Crimes and Offences statute and historic common law. One similarity is that the capital punishment applies to both law models. This is usually the punishment of the highest degree in any justice system and is only imposed on defendants found guilty of murder. The other similarity is that a logical procedure is followed in the proceedings of finding the defendant guilty or innocent. The verdict of innocence or guilt is usually made after vast investigations and the evidence provided in court. In the US, cases have taken years before a verdict is reached. Indeed, as this paper has demonstrated, there is a difference between historical common law and current statutory laws. This is hugely attributed to the evolution of criminal acts over the past decades.
References
South Carolina Legislature, (2001). South Carolina Code of Laws Unannotated. Retrieved from http://www.scstatehouse.gov/code/t16c003.php
West Group, (2017). South Carolina Criminal Law Manual 2017 : South Carolina Statutes, Court Rules, and Regulations Relating to Criminal Law as Appearing in the Code of Laws of South Carolina. West/Thomson Reuters/The State of SC. Retrieved from https://books.google.co.ke/books?id=QedlAQAACAAJ&dq=South+Carolina+crime+statutes&hl=en&sa=X&ved=0ahUKEwjopP2CjtXZAhVK1hQKHeH6A3gQ6AEIJzAA
