Criminal Law as Public Law III

2018 ◽  
pp. 71-110
Author(s):  
Vincent Chiao
Keyword(s):  
Criminal Law ◽  
Equal Opportunity ◽  
Public Law ◽  
The Political ◽  
Status Hierarchy ◽  
Democratic Equality ◽  
Political Ideal ◽  
Abstract Ideas ◽  
The Law

The previous chapter defended a fully political standard of justification, according to which a justification of the criminal law rests on (1) an account of when the institutions whose rules it enforces are worth supporting, and (2) an account of why its use in a particular context would be consistent with the principles that make those institutions worth supporting in the first place. This chapter offers a substantive interpretation of those more abstract ideas. Starting from a conception of a society of equals, familiar in the works of Pettit, Anderson, and Kolodny, among others, the chapter sketches an account (the political ideal of anti-deference) that is democratic, egalitarian but not equalizing, and focused on a form of freedom—central capability—as its basic evaluative currency. The chapter suggests that institutions committed to democratic equality in this sense would approve the use of the criminal law provided that those under its jurisdiction have an equal opportunity to influence the content of the law, its use does not further entrench an objectionable status hierarchy, and its use optimally protects effective access to central capability for all, criminal accused and victim alike.

Reasons to Criminalize

2018 ◽  
pp. 143-181
Author(s):  
Vincent Chiao
Keyword(s):  
Criminal Law ◽  
Subject Matter ◽  
Public Law ◽  
Point Of View ◽  
Harm Principle ◽  
The Political ◽  
Legal Moralism ◽  
The Public ◽  
Political Ideal ◽  
The Way

This chapter extends the public law conception to the theory of criminalization. The first half of the chapter is devoted to considering whether the criminal law has a privileged subject matter or “core,” focusing especially on Feinberg’s influential account of the criminal law as a system of direct prohibitions. The chapter argues that a subject-matter-based approach has difficulty coming to grips with actual criminal law systems in modern administrative states, in which so-called mala prohibita offenses predominate. The second half of the chapter turns to sketching how we might approach the question of criminalization from a public law point of view, both in general and with reference to the political ideal of anti-deference (sketched in Chapter 3) in particular. Along the way, the chapter argues that the (very popular) wrongfulness principle turns out to be either empty or implausible, and hence that we should reject any version of the harm principle, or of legal moralism, that presupposes it.

V. II principio dell’irretroattività della legge nell’esperienza giuridica romana dell’età repubblicana

2021 ◽  
Vol 138 (1) ◽  
pp. 245-273
Author(s):  
Umberto Laffi
Keyword(s):  
Criminal Law ◽  
Civil Law ◽  
First Century ◽  
The Political ◽  
Political Struggle ◽  
Dynamic Relationship ◽  
Depth Analysis ◽  
The Law ◽  
Criminal Legislation ◽  
Epigraphic Evidence

Abstract The Principle of the Irretroactivity of the Law in the Roman Legal Experience in the Republican Age. Through an in-depth analysis of literary and legal sources (primarily Cicero) and of epigraphic evidence, the author demonstrates that the principle of the law’s non-retroactivity was known to, and applied by, the Romans since the Republican age. The political struggle favored on several occasions the violation of this principle by imposing an extraordinary criminal legislation, aimed at sanctioning past behaviors of adversaries. But, although with undeniable limits of effectiveness in the dynamic relationship with the retroactivity, the author acknowledges that at the end of the first century BC non-retroactivity appeared as the dominant principle, consolidated both in the field of the civil law as well as substantive criminal law.

Equality of opportunity

2018 ◽  
Author(s):  
Mark Navin
Keyword(s):  
Equal Opportunity ◽  
Equality Of Opportunity ◽  
Institutional Arrangements ◽  
Equal Access ◽  
The Political ◽  
Political Ideal ◽  
Political Spectrum ◽  
Treat All ◽  
Individual Choices ◽  
Critical Literature

Equality of opportunity is a political ideal according to which participants in some cooperative systems should possess equal access to some advantages at some point in time. According to this ideal, distributive outcomes (e.g., of income, welfare, functionings) should not be fixed in advance, but should result from processes that treat all people equally. Equality of opportunity is an egalitarian ideal, but it focuses on the means by which people acquire advantages, rather than on outcomes. Diverse conceptions of equality of opportunity are distinguished by their different accounts of what it means to possess an equal opportunity, which sorts of advantages people ought to have an equal opportunity to acquire, and which kinds of cooperative activities ought to be regulated by this ideal. In particular, advocates of equality of opportunity disagree about whether equality of opportunity requires only a prohibition on discrimination (e.g., in employment), or whether it also requires efforts to mitigate the influences of some background conditions (e.g., family social status) on distributive outcomes. They also disagree about whether people ought to have an equal opportunity to acquire welfare, resources, functionings, or some combination of these kinds of goods. Finally, advocates of equality of opportunity disagree about whether this ideal should regulate individual choices or only institutional arrangements, and whether it applies only among members of the same society. The concept of equality of opportunity has widespread support across the political spectrum, and therefore most of the critical literature offers objections to particular conceptions of this ideal, rather than to the broader concept of equality of opportunity.

scholarly journals RZUT OKA NA POLSKĄ ROMANISTYKĘ W PIERWSZYM DZIESIĘCIOLECIU XXI WIEKU

2016 ◽  
Vol 12 (1) ◽  
pp. 7
Author(s):  
Maria Zabłocka
Keyword(s):  
Criminal Law ◽  
Political System ◽  
Public Law ◽  
Second World War ◽  
First Century ◽  
Roman Law ◽  
The Political ◽  
Private Law ◽  
World War ◽  
Second World

An Overview of the Work of Polish Scholarship on Roman Law in the First Decade of the Twenty-First Century Summary In the first decade of the 21st century Polish scholars of Roman Law accomplished a considerable amount of work, adopting an entirely new area of research. While publications on private law had constituted the predominant trend since the Second World War, especially in the first forty years of the period, articles on public law were an exception until recent times. In the last few years nearly twice as many monographs have been published on a broad range of issues in public law, such as the political system, administration, and criminal law, as on private law. The numer of articles on public law has also been much larger than on other branches of Roman law. The work of Polish Romanists has earned acknowledgement abroad, as evidenced by the invitations Polish researchers have been receiving to contribute to foreign occasional volumes, and by the digests of Polish books and articles which have appeared in the Italian scholarly journal «Iura. Rivista internazionale di diritto romano e antico».

Reflections Upon the Political Offense in International Practice

1963 ◽  
Vol 57 (1) ◽  
pp. 1-24 ◽  
Author(s):  
Alona E. Evans
Keyword(s):  
Criminal Law ◽  
Human Experience ◽  
The Political ◽  
The Law

The political offense represents a controversial dimension of criminal law which encompasses as many degrees of chicanery, expediency, and misery as any aspect of human experience within the realm of the law.

The Noose Hidden Under Flowers: Marriage and Law in Saint Ronan’s Well

2015 ◽  
Author(s):  
John W Cairns
Keyword(s):  
Criminal Law ◽  
Sir Walter Scott ◽  
Law And Society ◽  
The Political ◽  
General Point ◽  
The Novel ◽  
Crime And Punishment ◽  
Waverley Novels ◽  
The Law ◽  
Harsh Critique

This chapter explores issues of the law on marriage in novels by Sir Walter Scott, focusing on Saint Ronan's Well. In a number of ways, Scott's novels can be viewed as offering a commentary on Scots law and society. Legal themes that emerge from them can indicate more general contemporary legal concerns. This general point has been demonstrated in Bruce Beiderwell's argument that the Waverley novels made an important contribution to general discourse about crime and punishment at a crucial period in the development of new penal strategies and of reform in the criminal law. The chapter argues that the theme of marriage is central to Saint Ronan's Well and shows that the novel offers a harsh critique of aspects of the Scots law on the constitution of marriage and, at another level, of that other union — the political one of Scotland with England.

From Contract to Treaty. The Legal Transformation of the Spanish Succession 1659–1713

2011 ◽  
Vol 13 (2) ◽  
pp. 347-375 ◽  
Author(s):  
Frederik Dhondt
Keyword(s):  
International Law ◽  
Public Law ◽  
The Political ◽  
Private Law ◽  
Legal Doctrine ◽  
Louis Xiv ◽  
The Law

The problem of the Spanish Succession kept the European diplomatic system in suspense from 1659 until 1713. Statesmen and diplomats tackled the question. Their practical vision of the law was a necessary complement to legal doctrine. Louis XIV and Emperor Leopold I used incompatible and absolute claims, which originated in private law and Spanish succession law. At the Peace of Utrecht, these arguments completely dissolved. The War of the Spanish Succession thus not only redesigned the political map of Europe: It altered the norm hierarchy in public law, strengthening international law as the framework of the 'Société des Princes'.

Mutual Benefit, Property, and the Conceptual Foundations of Trust

2017 ◽  
Author(s):  
Henrique Carvalho
Keyword(s):  
Political Theory ◽  
Criminal Law ◽  
John Locke ◽  
Thomas Hobbes ◽  
The Political ◽  
Mutual Benefit ◽  
Crime And Punishment ◽  
Theoretical Examination ◽  
Conceptual Foundations

This chapter builds on the discussion initiated in the previous chapter, contrasting the political theory of Thomas Hobbes with that of John Locke in order to argue that the same insecurity found in Hobbes’s account of criminal law and punishment is preserved in Locke’s model of society. It provides a rarely seen analysis of Locke’s account of crime and punishment, as well as the role which these concepts play in his broader political theory. This theoretical examination is used as an analogy through which to understand the tensions and contradictions found in the liberal model of criminal law, as well as its vulnerability to conditions of socio-political insecurity.

scholarly journals HUKUM ADMINISTRASI NEGARA SEBAGAI HIMPUNAN PERATURAN-PERATURAN ISTIMEWA

to-ra ◽  
2019 ◽  
Vol 5 (1) ◽  
pp. 37
Author(s):  
Chandra Aritonang
Keyword(s):  
Criminal Law ◽  
Public Interest ◽  
Administrative Law ◽  
Public Law ◽  
The State ◽  
The Public ◽  
State Administration ◽  
The Law

Abstract State Administration in every action must be based on law to solve and resolve the problem mentioned above or there is no law. The State Administration can be forced to use its authority to revoke regulations. Administration as a law maker in its application when related to legal systematics has caused controversial matters in essence State Administration is part of public law, so that all actions in the application based on its function are solely intended for and in the public interest, this is no different from the law State Administration, Criminal Law and Others. A situation can lead to deviations from the State administration of the systematics of law. Therefore the State Administrative Law as a set of special regulations.   Keywords: state administration; public law; special regulations.  

Structure and Nomenclature

2021 ◽  
pp. 26-50
Author(s):  
A P Simester
Keyword(s):  
Criminal Law ◽  
Mental State ◽  
Criminal Liability ◽  
Mens Rea ◽  
Basic Framework ◽  
Actus Reus ◽  
The Law ◽  
Physical Elements

This chapter discusses criminal law’s structure and working doctrines, offering some preliminary remarks about how the major legal doctrines relate to the principles identified in the previous chapter. In terms of the basic framework, it is conventional these days for common lawyers to divide up the law of crimes into three rather broad groupings: actus reus (the so-called ‘external’ or ‘physical’ elements of the crime); mens rea (the defendant’s mental state or, sometimes, the lack of it); and defences. The master question for criminal liability then becomes one of concurrence—is there a moment in time at which the actus reus and mens rea requirements of the offence are simultaneously satisfied, and there are no defences available? However, this threefold division is not clean, and the contents of each part are not independent of one another. The chapter presents a rough structural sketch of the criminal law.

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