Criminal Law as Public Law I

2018 ◽  
pp. 1-34
Author(s):  
Vincent Chiao
Keyword(s):  
Twentieth Century ◽  
Criminal Law ◽  
Political Legitimacy ◽  
Public Law ◽  
Normative Theory ◽  
Public Institutions ◽  
Criminal Process ◽  
Social Commitment ◽  
Crime And Punishment ◽  
Eighteenth And Nineteenth Centuries

This chapter sketches the gradual emergence of criminal law as public law over the course of the eighteenth and nineteenth centuries, as public institutions gradually asserted control over most aspects of the criminal process. The emergence of criminal law as public law is compared to the development of the welfare state in the early decades of the twentieth century. Public institutions collectively manage the risk of crime, in part by mobilizing practices of policing, prosecution, and punishment. They represent a social commitment to treating crime as a publicly shared burden rather than merely a privately borne tragedy. The emergence of criminal law as public law suggests that, rather than understanding crime and punishment by reference to the rights of individual persons in the state of nature, a normative theory of criminal law should be appropriately sensitive to the institutional morality and political legitimacy of public institutions.

Hegel's Theory of Crime and Punishment

1982 ◽  
Vol 44 (4) ◽  
pp. 523-545 ◽  
Author(s):  
Lewis P. Hinchman
Keyword(s):  
Political Philosophy ◽  
Criminal Justice ◽  
Criminal Law ◽  
Philosophy Of Language ◽  
Political Legitimacy ◽  
Vantage Point ◽  
The State ◽  
Crime And Punishment ◽  
Theory Of Crime

In recent times, the issues surrounding crime and punishment have seldom been discussed from the vantage point of political philosophy. Instead, they have tended to become the province of lawyers, psychologists, and specialists in ethics or the philosophy of language. Whatever the merits of their respective contributions may be, such writers usually have assumed that the basic questions of political legitimacy and the state's authority to enforce criminal law have been settled. In effect, they ask: given a state which already possesses a legitimate system of criminal justice, whom should the state punish (if it does at all), why, and under what circumstances?

Criminal Law in the Age of the Administrative State

2018 ◽  
Author(s):  
Vincent Chiao
Keyword(s):  
Criminal Law ◽  
Mass Incarceration ◽  
Public Law ◽  
Public Institutions ◽  
Public Institution ◽  
Administrative State ◽  
The Public ◽  
Political Morality ◽  
Wide Range ◽  
Procedural Rights

What is the criminal law for? At its most elemental, criminal law secures the possibility of a shared life under stable and just public institutions. In the age of the administrative state, criminal law performs this task by stabilizing cooperation across a wide range of contexts, from backstopping compliance with tax law to protecting the integrity of a nation’s fisheries. How should we decide when this is a legitimate use of the criminal law? The “public law” conception sketched in this book suggests that because the criminal law is a public institution, it should be evaluated by the very same values that we structure our evaluation of public institutions generally. In contrast to familiar forms of retributivism, the public law conception starts from the political morality of public institutions, rather than the interpersonal morality of private relationships. In a society with democratic and egalitarian aspirations, the legitimacy of the criminal law depends in part upon the democratic and egalitarian character of the institutions it supports, and in part upon its supporting those institutions by means that are themselves consistent with democratic and egalitarian principles. The particular account of those principles sketched in this book is democratic, egalitarian without being equalizing, and focused on a form of freedom—effective access to central capability—as its currency of evaluation. This approach provides a distinctive and illuminating framework for assessing a wide range of problems in criminal law and policy, from mass incarceration, to over-criminalization and the allocation of procedural rights.

scholarly journals The Promise of German Criminal Law: A Science of Crime and Punishment

2005 ◽  
Vol 6 (7) ◽  
pp. 1049-1071 ◽  
Author(s):  
Markus Dirk Dubber
Keyword(s):  
Twentieth Century ◽  
Criminal Justice ◽  
Criminal Law ◽  
Scientific Discovery ◽  
Criminal Code ◽  
Criminal Justice Policy ◽  
Crime And Punishment ◽  
Positive Law ◽  
General Part

The system of German criminal law is the product of a centuries-long project of scientific discovery undertaken by scholars who traditionally have defined the science of criminal law (Strafrechtswissenschaft) in contradistinction to the markedly unscientific business of criminal justice policy (Kriminalpolitik). Insular and formalistic by design, the resulting highly differentiated taxonomy of doctrinal categories can claim only a loose connection to rules of positive law as codified in the general part of the German Criminal Code and instead derives more directly from scientific inquiries into the ontology of crime dating back to the early decades of the twentieth century.

Criminal Law as Public Law II

2018 ◽  
pp. 35-70
Author(s):  
Vincent Chiao
Keyword(s):  
Criminal Law ◽  
Public Law ◽  
Basic Function ◽  
Public Institutions ◽  
Social Cooperation ◽  
The Public ◽  
Negative Reciprocity

This chapter develops the “public law conception” of the criminal law. By embodying a form of negative reciprocity, the criminal law plays an important role in stabilizing social cooperation. Stabilizing social cooperation with public institutions is the basic function of the criminal law, in the sense of a function that must be adequately discharged regardless of whatever other functions we might wish to achieve by means of the criminal law. Hence, the criminal law is subject to a “fully political standard of justification”: the criminal law is worth supporting if and only if (1) the institutions whose rules it enforces are worth supporting, and (2) its use in a particular context would be consistent with the principles that make those institutions worth supporting in the first place.

Review: Urban Latino Cultures: La Vida Latina en LA by Gustavo Leclerc, Raúl Villa, and Michael J. Dear (eds.)

1999 ◽  
Vol 22 (1) ◽  
pp. 126-128
Author(s):  
Catherine S. Ramirez
Keyword(s):  
Twentieth Century ◽  
Los Angeles ◽  
Mexican American ◽  
History Of ◽  
Crime Wave ◽  
Eighteenth And Nineteenth Centuries ◽  
The City ◽  
History Of Los Angeles

Throughout the twentieth century (and now the twenty-first), the specter of a Latina/o past, present, and future has haunted the myth of Los Angeles as a sunny, bucolic paradise. At the same time it has loomed behind narratives of the city as a dystopic, urban nightmare. In the 1940s Carey McWilliams pointed to the fabrication of a “Spanish fantasy heritage” that made Los Angeles the bygone home of fair señoritas, genteel caballeros and benevolent mission padres. Meanwhile, the dominant Angeleno press invented a “zoot” (read Mexican-American) crime wave. Unlike the aristocratic, European Californias/os of lore, the Mexican/American “gangsters” of the 1940s were described as racial mongrels. What's more, the newspapers explicitly identified them as the sons and daughters of immigrants-thus eliding any link they may have had to the Californias/os of the eighteenth and nineteenth centuries or to the history of Los Angeles in general.

Aftershocks

2017 ◽  
Author(s):  
Seva Gunitsky
Keyword(s):  
Twentieth Century ◽  
Regime Change ◽  
International System ◽  
Political Legitimacy ◽  
Great Powers ◽  
Past Century ◽  
The Past ◽  
Sudden Rise ◽  
The World ◽  
National Borders

Over the past century, democracy spread around the world in turbulent bursts of change, sweeping across national borders in dramatic cascades of revolution and reform. This book offers a new global-oriented explanation for this wavelike spread and retreat—not only of democracy but also of its twentieth-century rivals, fascism, and communism. The book argues that waves of regime change are driven by the aftermath of cataclysmic disruptions to the international system. These hegemonic shocks, marked by the sudden rise and fall of great powers, have been essential and often-neglected drivers of domestic transformations. Though rare and fleeting, they not only repeatedly alter the global hierarchy of powerful states but also create unique and powerful opportunities for sweeping national reforms—by triggering military impositions, swiftly changing the incentives of domestic actors, or transforming the basis of political legitimacy itself. As a result, the evolution of modern regimes cannot be fully understood without examining the consequences of clashes between great powers, which repeatedly—and often unsuccessfully—sought to cajole, inspire, and intimidate other states into joining their camps.

PERSINGGUNGAN KEWENANGAN MENGADILI PENYALAHGUNAAN DISKRESI ANTARA PENGADILAN TUN DAN PENGADILAN TIPIKOR / INTERCEPTION OF JUSTICE AUTHORITY OF DISCRETION ABUSE BETWEEN ADMINISTRATION COURT AND CORRUPTION COURTS

2018 ◽  
Vol 7 (2) ◽  
pp. 213
Author(s):  
Budi Suhariyanto
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Administrative Law ◽  
The State ◽  
Government Officials ◽  
Criminal Process ◽  
The Supreme Court ◽  
State Finance ◽  
The Law ◽  
To Receive

Diskresi sebagai wewenang bebas, keberadaannya rentan akan disalahgunakan. Penyalahgunaan diskresi yang berimplikasi merugikan keuangan negara dapat dituntutkan pertanggungjawabannya secara hukum administrasi maupun hukum pidana. Mengingat selama ini peraturan perundang-undangan tentang pemberantasan tindak pidana korupsi tidak merumuskan secara rinci yang dimaksudkan unsur menyalahgunakan kewenangan maka para hakim menggunakan konsep penyalahgunaan wewenang dari hukum administrasi. Problema muncul saat diberlakukannya Undang-Undang Nomor 30 Tahun 2014 dimana telah memicu persinggungan dalam hal kewenangan mengadili penyalahgunaan wewenang (termasuk diskresi) antara Pengadilan Tata Usaha Negara dengan Pengadilan Tindak Pidana Korupsi. Pada perkembangannya, persinggungan kewenangan mengadili tersebut ditegaskan oleh Peraturan Mahkamah Agung Nomor 4 Tahun 2015 bahwa PTUN berwenang menerima, memeriksa, dan memutus permohonan penilaian ada atau tidak ada penyalahgunaan wewenang (termasuk diskresi) dalam Keputusan dan/atau Tindakan Pejabat Pemerintahan sebelum adanya proses pidana. Sehubungan tidak dijelaskan tentang definisi dan batasan proses pidana yang dimaksud, maka timbul penafsiran yang berbeda. Perlu diadakan kesepakatan bersama dan dituangkan dalam regulasi tentang tapal batas persinggungan yang jelas tanpa meniadakan kewenangan pengujian penyalahgunaan wewenang diskresi pada Pengadilan TUN.Discretion as free authority is vulnerable to being misused. The abuse of discretion implicating the state finance may be prosecuted by both administrative and criminal law. In view of the fact that the law on corruption eradication does not formulate in detail the intended element of authority abuse, the judges use the concept of authority abuse from administrative law. Problems arise when the enactment of Law No. 30 of 2014 triggered an interception in terms of justice/ adjudicate authority on authority abuse (including discretion) between the Administrative Court and Corruption Court. In its development, the interception of justice authority is affirmed by Regulation of the Supreme Court Number 4 of 2015 that the Administrative Court has the authority to receive, examine and decide upon the appeal there is or there is no misuse of authority in the Decision and / or Action of Government Officials prior to the criminal process. That is, shortly before the commencement of the criminal process then that's when the authority of PTUN decides to judge the misuse of authority over the case. In this context, Perma No. 4 of 2015 has imposed restrictions on the authority of the TUN Court in prosecuting the abuse of discretionary authority.

Fiduciary Principles and Public Offices

2019 ◽  
pp. 302-322
Author(s):  
Ethan J. Leib ◽  
Stephen R. Galoob
Keyword(s):  
Administrative Law ◽  
Public Law ◽  
Public Institutions ◽  
Policy Implications ◽  
Public Officials ◽  
Public Office ◽  
Public And Private ◽  
Normative Structure ◽  
The Public ◽  
Positive Law

This chapter examines how fiduciary principles apply to public offices, focusing on what it means for officeholders to comport themselves to their respective public roles appropriately. Public law institutions can operate in accordance with fiduciary norms even when they are enforced differently from the remedial mechanisms available in private fiduciary law. In the public sector, fiduciary norms are difficult to enforce directly and the fiduciary norms of public office do not overlap completely with the positive law governing public officials. Nevertheless, core fiduciary principles are at the heart of public officeholding, and public officers need to fulfill their fiduciary role obligations. This chapter first considers three areas of U.S. public law whose fiduciary character reinforces the tenet that public office is a public trust: the U.S. Constitution’s “Emoluments Clauses,” administrative law, and the law of judging. It then explores the fiduciary character of public law by looking at the deeper normative structure of public officeholding, placing emphasis on how public officeholders are constrained by the principles of loyalty, care, deliberation, conscientiousness, and robustness. It also compares the policy implications of the fiduciary view of officeholding with those of Dennis Thompson’s view before concluding with an explanation of how the application of fiduciary principles might differ between public and private law settings and how public institutions might be designed or reformed in light of fiduciary norms.

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