Social Expectations in the Criminal Law: The "Reasonable Person" in a Comparative Perspective

Author(s):  
Tatjana Höörnle

The "reasonable person" plays an important role in English and American criminal law, but not in German criminal law. The comparative view yields a number of differences (for example, with respect to negligent crimes, errors about justifying circumstances, and excuses like duress). Besides analyzing such differences, the article examines the legitimate role of social expectations in criminal law (which stand behind references to the "reasonable person") beyond the details of different legal systems. It concludes that one must distinguish judgments about wrongdoing from judgments about personal responsibility. The former are shaped by social expectations, while personal responsibility needs to be evaluated with a view to the individual offender.

1998 ◽  
Vol 6 (2) ◽  
pp. 140-158
Author(s):  
Jörg Arnold ◽  
Emily Silverman

AbstractIn an initial summing up of this necessarily abbreviated and cursory report of findings, the first thing to recognise is that the countries examined in the study accorded different significance to the criminal law as a means for dealing with the past. The Eastern European countries, at any rate, appear to be largely in agreement with regard to the role of rehabilitation and compensation, although more comparative research into their realization in practice is required. With regard to the direct criminal prosecution and punishment of political and state-promoted crime, however, there is much less uniformity. This is clearly illustrated by the disparate criminal justice practices in the individual countries. Nevertheless, it cannot be said that criminal law plays no role whatsoever in accounting for the past.


2013 ◽  
Vol 26 (1) ◽  
pp. 127-153 ◽  
Author(s):  
DARRYL ROBINSON

AbstractIn this article, I argue that two prominent frameworks for evaluating and developing international criminal law (ICL) can be reconciled into a new framework that absorbs the best insights of its predecessors. We cannot simply transplant fundamental principles from national legal systems, because they may be inapposite in the unusual contexts faced by ICL. However, this novelty does not mean that we are free to simply abandon culpability, legality, and our basic underlying commitment to the individual. Instead we must explore what that deontic commitment might entail in these new contexts. My primary aim is to show the possibility of bridging the apparent normative impasse. I also briefly sketch out the proposed framework, and suggest that it can generate new questions for current controversies in ICL. As an interesting by-product, the examination of ‘abnormal’ criminal law can raise new questions for general criminal-law theory, by exposing subtleties and parameters that we might not have noticed in a study of ‘normal’ contexts.


2018 ◽  
Vol 2 (2) ◽  
pp. 120
Author(s):  
Jean-Louis Halpérin

<p><strong>RESUMÉ:</strong></p><p>La réflexion sur la diversité des approches méthodologiques en droit comparé n’a guère porté, au cours de ces dernières décennies, sur le droit pénal. Cette relative lacune de la littérature tient à une conception d’un droit pénal universel qui connaîtrait seulement quelques variations dans la sévérité plus ou moins grande de la répression. Il apparaît pourtant utile pour les comparatistes d’identifier de manière historique les développements de la discipline du droit pénal et de considérer que le champ pénal n’est pas identique à lui-même à travers le temps et l’espace. Cette contribution s’attache à montrer comment la spécialisation des pénalistes, à partir du XIXe siècle, s’est accompagnée longtemps d’une démarche comparative avant que ne s’installe une sorte de désintérêt pour la comparaison des infractions reconnues ou non par les différents ordres juridiques étatiques. Or, la prise en compte des phénomènes de criminalisation et de décriminalisation montre à quel point ces droits étatiques sont susceptibles de converger ou de diverger, en présentant des configurations beaucoup plus complexes que les traditionnelles familles de droit. En recourant à la théorie du droit, le droit pénal comparé alimente la réflexion sur la place des lois prohibitives, leur éventuelle relation avec des normes culturelles et le recours à des interdits dans des domaines qui font l’objet dans d’autres pays à des lois permissives.</p><p> </p><p><strong>RESUMO:</strong></p><p>A discussão sobre a diversidade de abordagens metodológicas em direito comparado, no decorrer das últimas décadas, pouco se debruçou sobre o direito penal. Esta lacuna se deve à uma concepção de direito penal universal que admitiria apenas variações no grau de severidade da repressão. Contudo, para os comparatistas mostra-se útil identificar historicamente o desenvolvimento da disciplina de direito penal e considerar que o campo não se mantém inalterado através do tempo e do espaço. Este trabalho visa mostrar como, a partir do século XIX, a especialização de penalistas foi acompanhada por muito tempo de uma abordagem comparativa, antes de que se instalasse um desinteresse pela comparação de infrações reconhecidas -ou não- por diferentes ordenamentos jurídicos estatais. A compreensão dos fenômenos de criminalização e descriminalização mostra até que ponto os direitos estatais são suscetíveis de convergir ou divergir, apresentando configurações muito mais complexas que as tradicionais famílias de direito. Assim, utilizando-se da teoria do direito, o direito penal comparado incita a reflexão sobre o papel das leis proibitivas, sua eventual relação com normas culturais e a possibilidade de proibições em determinadas matérias serem objetos de leis permissivas em outros países.</p><p> </p><p><strong>ABSTRACT:</strong></p><p>The discussion about the methodological diversity in Comparative Law has barely touched upon criminal law. This gap in the literature is due to a conception of universal Criminal Law in which only variations regarding the severity of crime’s repression would be admitted. Nonetheless, the historical study of Criminal Law along with the reflection on changes in the discipline through time and space has proven to be useful for comparatists. The aim of this study is to show how the specialization of scholars of Criminal Law, since the 19th century, had been accompanied by a comparatist approach before a pervasive disinterest in comparing infractions under different legal systems came to be the rule. The phenomena of criminalization and decriminalization reveal to what point legal systems converge or diverge in a more elaborated way than those depicted by the traditional division of legal systems. Thus, Comparative Criminal Law, using the insights from Legal Theory, stimulates reflections on the role of prohibitive laws, their relation with cultural norms, and the possibility of a prohibition being permitted elsewhere – i.e. other countries.</p><p> </p>


Temida ◽  
2003 ◽  
Vol 6 (2) ◽  
pp. 37-44
Author(s):  
Jasmina Kiurski

In this article author examines a definition of a family, the role of a family as a social and legal institution as well as state reaction in a situation of mal function of a family. Special attention is given to a definition of a family, its protective function and criminal law in modern legal systems. Author also analyzes recent reform of our legislation firstly new criminal offence (Article 118a of the Criminal Code of Republic of Serbia) - Domestic Violence - and its relation to other similar criminal offences. Finally, author gives an overview of up-to-now practice from District and Municipal Prosecutors Offices in Belgrade and suggestions for solving observed problems in implementation of this criminal offence.


Author(s):  
Arlie Loughnan

The way in which mental incapacity in criminal law has been approached to date has not produced a thorough understanding of it. The idea that mental incapacity's chief relevance in criminal law is as a basis for exculpation dominates the scholarship—both doctrinal and philosophical—on mental incapacity. In an effort to advance scholarly understanding of this area of criminal law, this article provides a reconstruction of the legal terrain concerned with mental incapacity—organized as mental incapacity doctrines, a subset of which is exculpatory. In my reconstruction, what unites the relevant aspects of the law is that each doctrine imagines an abnormal subject of the law, and where the doctrines are exculpatory, the evaluative inquiry is not indexed to the reasonable person. This reconstruction of mental incapacity in criminal law—as mental incapacity doctrines—cuts across existing categorizations of this terrain and, as such, offers a rethinking of this area of the criminal law. This reconstruction permits a reconceptualization of the role of mental incapacity in criminal law: it becomes clear that mental incapacity is the basis for doctrines which perform a multiplicity of roles—inculpation, imputation, and a procedural role—beyond exculpation.


2015 ◽  
Vol 84 (1) ◽  
pp. 29-58
Author(s):  
Aldo Zammit Borda

This article examines the notion of ‘persuasive value’ of external precedent in the context of international criminal law. It finds that, in a number of cases, individual judges have appeared to assess the relevance and persuasive value of the same judicial decision differently and suggests that an assessment of this notion may be contingent on the specific circumstances of the case, including the individual approaches of judges. The article proceeds to flesh out some extrinsic and intrinsic elements of this notion. With respect to the former, these include: (1) the specific attitudes of individual judges; (2) the authority of the forum, including the generalist or specialist character of the court and the potential role of judicial networks; (3) the effect of successive citations; and (4) the potentially uneven playing field of citations. With respect to the latter, these may include: (1) the nature of the law being applied and the consonance of the findings with the applicable law; and (2) the quality of the reasoning. While there potentially may be a link between the quality of reasoning of a given decision and an assessment of its persuasive value, this may depend on the circumstances of the case and, in particular, on the approaches of the individual judges, who may accord differing weight to the elements involved in the equation. Thus, the article concludes that, ultimately, any assessment of the notion of persuasive value may have to remain contingent and incomplete.


Author(s):  
Nina A. Efimov ◽  

This article investigates V. P. Aksyonov’s argument with L. N. Tolstoy about the role of personality in history in his trilogy Generations of Winter. The saga protagonists’ spiritual awakening and self-identification are discussed in the context of Tolstoy’s view on the activity of the general mass of people who take part in a historical event and determine its outcome. This allows to elicit Aksyonov’s view on man’s personal responsibility under Stalinism. The main sources of this paper are Tolstoy’s War and Peace and Aksyonov’s Generations of Winter. Its purpose is to explain Aksyonov’s artistic conceptualization of the role of the masses and the individual under the Stalinist regime and in the Great Patriotic War. The major results of the research have been achieved by comparing the artistic devices employed by Tolstoy in fracturing the myth of Napoleon’s genius as leader of the general mass with Aksyonov’s approach in satirical portrayal of Stalin. The article explores Aksyonov’s contribution to the literary tradition of the grotesque, his utilization of the functions of the body “bottom” and of Russian popular demonic motifs in the depiction of Stalin. The paper’s author utilizes a comparative hermeneutical analysis and concludes that Aksyonov’s metaphor of “Stalinist hypnosis” is the writerly equivalent of Tolstoy’s conception of “swarm behavior”, and that Aksyonov’s argument with Tolstoy’s negation of the role of the individual in history is a postmodern playful ironic device, a means for his conceptualization and revision of Leo Tolstoy’s philosophic-historical view for the twentieth century.


2020 ◽  
Vol 222 ◽  
pp. 05018
Author(s):  
Tatyana Kruzhkova ◽  
Olga Rushitskaya ◽  
Ekaterina Kot ◽  
Elena Szczepaniak

The article reveals the essence of the concept of “responsible person” and the problem of its пenesis. Different theoretical and methodological approaches to its definition are shown. The phenomenon of social responsibility is considered as the basis of productive social creativity. The author analyzes the main trends and the nature of the process of formation of social responsibility of the individual in modern conditions. Particular attention is paid to increasing the role of personal responsibility in times of social instability and uncertainty. The accumulated experience of scientific understanding of the concept of «social responsibility» is revealed. Specific features of social responsibility and its interpretation in the works of F.Bastia, I. A. Ilyin, P. A. Kropotkin, I. I. Lapshin, N. O. Lossky, V. S. Solovyov, N. F. Fedorov, and others.


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