Conflicting Duties in Criminal Law

2019 ◽  
Vol 22 (1) ◽  
pp. 34-72
Author(s):  
Ivó Coca-Vila
Keyword(s):  
Criminal Law ◽  
Legal System ◽  
Critical Review ◽  
Point Of View ◽  
The Other ◽  
Legal Institution ◽  
Anglo American ◽  
Formal Point

Despite the great interest aroused among Anglo-American criminal law scholars by the justification of necessity, the conflict of duties as a separate defense sui generis has gone largely unnoticed until now. The aim of this paper is to fill the gap by providing a critical review of the concept and foundation for a conflict of duties as defense in the continental criminal law. Regarding the former, this legal institution is defined as a conflict between grounds of obligation that cannot be cumulatively fulfilled. Their deontic nature (prohibited or required) is thus irrelevant. With regard to the second issue, the argument is made that the solution of the collision involves a judgment set out to hierarchically arrange the colliding reasons from a formal point of view that is respectful with the principles of autonomy and solidarity. Therefore, the obligor must only fulfill the strongest ground of obligation—the only duty that can be legitimized in the particular situation—or, when before a conflict between equivalent grounds of obligation, they must comply with the disjunctive or alternative duty—aid one or the other—which the legal system imposes on them.

Translation and interpretation in Abhidharmakośa

Diogenes ◽  
2021 ◽  
Vol 29 (2) ◽  
Author(s):  
Mitko Momov
Keyword(s):  
Critical Review ◽  
Point Of View ◽  
Literal Meaning ◽  
The Other ◽  
Young Scholar ◽  
Other Hand ◽  
The One

Rosemberg (1991) has made a critical review of a long-standing discussion between Eastern philologists and Buddhist philosophers. The discussion is centered around the translation of the doctrine on the one hand, and its philosophical systematization on the other hand. When scientific-philological translation prevails, the literal meaning of Buddhist terminology is declared to be its basis. The young scholar, who had specialized in Japan, studied Buddhism from Japanese and Chinese sources and collected lexicographic material from non-Hindu sources. After comparing them, he encountered inaccuracies in the translation. In an attempt to overcome them, he preferred the point of view of the philosophy of Buddhism. The conclusion that he has drawn in the preface of this edition is that the study should begin with a systematization of antiquity.

scholarly journals The bastard verdict and its influence on jurors

2018 ◽  
Vol 59 (1) ◽  
pp. 26-35
Author(s):  
Lee J. Curley ◽  
Rory MacLean ◽  
Jennifer Murray ◽  
Phyllis Laybourn ◽  
David Brown
Keyword(s):  
Human Rights ◽  
Rational Choice ◽  
Legal System ◽  
Choice Models ◽  
The Other ◽  
European Convention ◽  
Guilty Verdict ◽  
Anglo American

The Scottish legal system is a unique jurisdiction, as jurors are able to give not proven verdicts in addition to the well-known Anglo-American verdicts (guilty and not guilty). The not proven verdict has never been legally defined, meaning that currently legal practitioners can only estimate why a not proven verdict has been given. The main aim of this study was to investigate if jurors violate the regularity principle, which is commonly incorporated in many rational choice models, by testing if the introduction of the not proven verdict has an impact on the outcomes given by jurors. In addition, this study aimed to test if the introduction of the not proven verdict has an impact upon how the not guilty verdict is perceived by jurors. In this study, 128 participants listened to two vignettes centred on homicide trials. Jurors could give one of two verdicts in one of the vignettes and one of three verdicts in the other vignette. The vignettes were counterbalanced in regard to how many verdicts could be given at the end of them. It was found that jurors in a three-verdict system were less likely to give a not guilty verdict in comparison to jurors in a two-verdict system, showing that jurors violate the regularity principle and that the not proven verdict may change how the not guilty verdict is perceived. The findings of this research have implications in relation to juror communication, article 6 of the European Convention of Human Rights and juror rationality.

scholarly journals Społeczna szkodliwość — dziedzictwo komunizmu w polskim prawie karnym?

2021 ◽  
Vol 43 (3) ◽  
pp. 155-179
Author(s):  
Wojciech Zalewski
Keyword(s):  
Criminal Law ◽  
Legal System ◽  
Criminal Liability ◽  
Second World War ◽  
Point Of View ◽  
Criminal Proceedings ◽  
Democratic State ◽  
The Social ◽  
Social Harmfulness ◽  
Second World

The introduction of social harmfulness (social danger) to Polish criminal law after the Second World War was politically motivated. For many, this circumstance was sufficient to formulate postulates about the necessity to remove this premise of criminal liability. Social harmfulness still remains controversial today. Before, criminal law was seen as a tool. Currently, it is to be an ultima ratio. It is clear that determining the essence of the crime and its nature, introducing into the law “what belongs to literature”, was necessary in the legal system of a totalitarian state, imposing its views and morals on society. In a legal system of a democratic state, a state ruled by law, a statutory ideological declaration regarding the essence of a crime seems redundant. However, changing the nomenclature is not enough here — there is a possibility of weakening the guaranteeing criminal law function. The social harmfulness premise contributes to the heterogeneity of jurisprudence, even in cases concerning serious crimes. The author is of the opinion that limiting the number of minor cases from the point of view of the state’s right to punish, which paralyzes the judiciary with their sheer number, should take place in a different way than introducing the social harmfulness of an act as a criterion determining the culpability. The currently adopted solution seems irrational and non-functional from the perspective of the legal certainty principle. A more appropriate move seems to be the assessing the advisability of prosecuting an act, i.e. by introducing and implementing the principle of opportunism in criminal proceedings.

Crime, Law and the Internet

2004 ◽  
Vol 26 (1) ◽  
Author(s):  
Eric Hilgendorf
Keyword(s):  
Criminal Law ◽  
Legal System ◽  
The Other ◽  
The Internet ◽  
Other Hand ◽  
The World ◽  
At Will ◽  
Global Reach

AbstractAfter some introductory remarks on the German legal system and German legal politics, the main forms of datanet crime on the Internet are sketched. After that, one of the most important Internet-cases of the last decade, the CompuServe case, is discussed in some detail. One of the main problems of datanet crime is its global reach. The world-spanning nature of the cyberspace significantly enlarges the ability of offenders to commit crimes that will affect people in a variety of other countries. On the other hand, the jurisdiction of national criminal law cannot be expanded at will by any single nation. A transnational criminal law for the Internet is possible but should be restricted to the defence of universally (or nearly universally) accepted interests and values. In effect, it seems that the problems of computer-related crime on the Internet cannot be solved by criminal law alone.

Israeli Law and Jewish Law — Interaction and Independence

1990 ◽  
Vol 24 (3-4) ◽  
pp. 507-524 ◽  
Author(s):  
Brahyahu Lifshitz
Keyword(s):  
Legal System ◽  
Point Of View ◽  
The Other ◽  
Jewish Law ◽  
Positive Law ◽  
Social Nature ◽  
Two Systems ◽  
The One ◽  
The Relationship

Jewish law is an independent legal system embracing most of the subjects to be found in any system of positive law. The hopes and efforts of many people notwithstanding, Israeli law is not identical to Jewish law, nor does it constitute one of its branches. The generally accepted view is that Jewish law is not influenced, nor affected in any way, by the acts of the Israeli legislature or judiciary. There is, however, little doubt that to a certain extent, Israeli law is influenced by Jewish law. It is therefore a legitimate exercise to discuss the nature of the relationship between the two systems from the point of view of Israeli law. We may also comment upon the amount of satisfaction or disappointment which may legitimately be felt, on the one hand, by those in favour of reinforcing the relationship between the two systems and making it stronger and more active and, on the other, by those opposed to such a relationship. It should also be observed that the interrelationship between Israeli and Jewish law is not only to be perceived from the standpoint of pure law. Any discussion of this question involves issues of a political, religious and social nature; a study focussing on the bare legal facts alone would provide a necessarily distorted picture.

scholarly journals KENDALA DALAM PELAKSANAAN PENEGAKAN HUKUM TERHADAP PRAKTIK PARANORMAL SEBAGAI TINDAK PIDANA

2018 ◽  
Vol 1 (1) ◽  
pp. 1908
Author(s):  
Yusi Permatasi ◽  
Yuwono Prianto
Keyword(s):  
Law Enforcement ◽  
Criminal Law ◽  
Legal System ◽  
Legal Culture ◽  
Point Of View ◽  
Legal Structure ◽  
The Law

In Society, Paranormal practices is considered as common things. Paranormal Practices is used for any good and also for crime, so to cope with the activities, government had regulated the act to control the crime by using paranormal background. The paranormal practices have been included as criminal acts. It has regulated in article 545 and article 546 of the criminal law act and set on as supernatural powers activity. As time passes, there are constraint in the alleviation law it’s law enforcement. This research was done with empirical or law sociological point of view, where Lawrence M. Friedman state that the elements of the legal system consist of Legal Structure, Legal Substance, and Legal Culture. The result of this research is the paranormal practices are differentiate by it used which is good or bad. The bad paranormal practices cause loss for society. This gave rise to uncertainty of law enforcement on the paranormal practices, therefore it need a deep research which is not only from the law enforcement point of view, but also the religious and cultural represented by figure.

warning; or, on a different plane, referring to people or things, presupposing the existence of people or things or the truth of propositions, and implicating mean-ings which are not overtly expressed. The idea of uttering as acting is an impor-tant one, and it is also central to CLS in the form of the claim, that discourse is social practice. The main weakness of pragmatics from a critical point of view is its individ-ualism: ‘action’ is thought of atomistically as emanating wholly from the individ-ual, and is often conceptualized in terms of the ‘strategies’ adopted by the individual speaker to achieve her ‘goals’ or ‘intentions’. This understates the extent to which people are caught up in, constrained by, and indeed derive their individual iden-tities from social conventions, and gives the implausible impression that conven-tionalized ways of speaking or writing are ‘reinvented’ on each occasion of their use by the speaker generating a suitable strategy for her particular goals. And it correspondingly overstates the extent to which people manipulate language for strate-gic purposes. Of course, people do act strategically in certain circumstances and use conventions rather than simply following them; but in other circumstances they do simply follow them, and what one needs is a theory of social action – social practice – which accounts for both the determining effect of conventions and the strategic creativity of individual speakers, without reducing practice to one or the other. The individuals postulated in pragmatics, moreover, are generally assumed to be involved in cooperative interactions whose ground rules they have equal con-trol over, and to which they are able to contribute equally. Cooperative interac-tion between equals is elevated into a prototype for social interaction in general, rather than being seen as a form of interaction whose occurrence is limited and socially constrained. The result is an idealized and Utopian image of verbal inter-action which is in stark contrast with the image offered by CLS of a sociolinguistic order moulded in social struggles and riven with inequalities of power. Pragmatics often appears to describe discourse as it might be in a better world, rather than discourse as it is. Pragmatics is also limited in having been mainly developed with reference to single invented utterances rather than real extended discourse, and central notions like ‘speech act’ have turned out to be problematic when people try to use them to analyse real discourse. Finally, Anglo-American pragmatics bears the scars of the way in which it has developed in relation to ‘linguistics proper’. While it has provided a space for investigating the interdependence of language and social con-text which was not available before its inception, it is a strictly constrained space, for pragmatics tends to be seen as an additional ‘level’ of language study which fills in gaps left by the more ‘core’ levels of grammar and semantics. Social con-text is acknowledged but kept in its place, which does it less than justice.

2005 ◽  
pp. 132-132
Keyword(s):  
Social Action ◽  
Social Practice ◽  
Speech Act ◽  
Point Of View ◽  
The Other ◽  
Social Conventions ◽  
Anglo American ◽  
Additional Level ◽  
The Individual ◽  
Theory Of Social Action

scholarly journals Sprawiedliwość w sędziowskim wymiarze kary

2017 ◽  
Vol 43 ◽  
pp. 279-325 ◽  
Author(s):  
Jadwiga Królikowska ◽  
Jarosław Utrat-Milecki
Keyword(s):  
Criminal Law ◽  
Social Process ◽  
Theoretical Background ◽  
Point Of View ◽  
Ethical Question ◽  
Legal Institution ◽  
General Outline ◽  
Protective Function ◽  
Main Research ◽  
Legal Studies

Punishment and justice in the judge’s sentencing decisionsThe article starts with the general presentation of the sociological perspective on the question of justice in the motives of a criminal judge’s sentencing decisions. The question of justice is also analysed in relation to the legitimation of the criminal law and the various theories of punishment, retributive, consequentialist, and mixed. Punishment is analysed as a social and legal institution and as a social process in its various organisational forms. The rationalisation of punishment as a social and legal institution is analysed in relation to the question of human rights, and the question of its effectiveness in social control as a tool in the protective function of the criminal law. The problem of justice is also analysed from a subjective point of view as a question of the just judge. It is not only analysed here as an ethical question, but also as a problem of the methodology of the work of the judge, and a question of organisation of the sentencing process. The article presents the results of research sociological reports concerning the question of the motives of judges’ sentencing in the criminal courts. The article presents the basics of the methodology and results of research in that respect which was carried out in the 1930s B.Wróblewski, W. Świda, 60s and 70s T. Kaczmarek, W. Świda, and the 1980s T. Kaczmarek, J. Giezek and the team, and the latest research carried out by the authors in 2012–2015 J. Królikowska, J. Utrat-Milecki. The authors explain here the general outline of the method of culturally integrated social and legal studies, which they used in their sociological and anthropological research on the criminal justice offi cers judges, prosecutors and probation officers, and which is also the theoretical background of the present article. Finally, the authors present the broader culturally integrated definition of punishment, so as to help to identify the main research questions in socio-legal studies of punishment considered both as a socio-legal institution and a social and legal process which can be identified in different organisational forms.

Islamic Law and Legal Hybridity in Nigeria

2014 ◽  
Vol 58 (2) ◽  
pp. 303-327 ◽  
Author(s):  
Mamman Lawan
Keyword(s):  
Criminal Law ◽  
Legal System ◽  
Islamic Law ◽  
The Other ◽  
Colonial Administration ◽  
English System ◽  
Customary Laws ◽  
British Colonial

AbstractThe British colonial administration created a hybrid legal system in Nigeria where English, Islamic and customary laws apply. The English system, having a written constitution, was made dominant and the other laws apply to the extent permitted by it. However, Muslims in the northern part of the country have been making efforts to reverse this dominance, including the recent re-introduction of Islamic criminal law by 12 states. This effort is seen to be revolutionary, reverting the states to the position when Islamic law applied in full, devoid of colonial influence. This article asks whether this can break the legal hybridity and answers in the negative, arguing instead that the effort accentuates the hybridity. For example, the re-introduction of Islamic criminal law is enabled by the constitution, the constitution institutionalises the hybridity and the 12 states operate, and are bound by, the constitution. The article discusses other variables depicting the hybridity and concludes that it was a conscious colonial act, nearly impossible to break.

scholarly journals Evolution of the Russian Criminal Legislation on Responsibility for Murder by Mother of her Newborn Child

Lex Russica ◽  
2019 ◽  
pp. 83-96
Author(s):  
V. B. Khatuev
Keyword(s):  
Retrospective Analysis ◽  
Russian Federation ◽  
Criminal Law ◽  
Criminal Responsibility ◽  
Criminal Code ◽  
Point Of View ◽  
Legal Institution ◽  
Newborn Child ◽  
The Russian Federation ◽  
Criminal Legislation

Without knowledge of history, without a deep retrospective analysis of any legal institution it is impossible to imagine the ways for its further improvement. This is quite true of the institute of murder by mother of her newborn child. This paper attempts to investigate the evolution of criminal responsibility for the murder of a newborn child by the mother, to establish the attitude of the legislator to this type of crime at different stages of development of the Russian criminal legislation — from the time of Ancient Russia to the present. To this end, the main historical legislative acts on the regulation of criminal law against this act are analyzed.The problem of the considered type of murder is extremely relevant. In the Russian doctrine of criminal law there are two positions concerning Art. 106 of the Criminal Code of the Russian Federation providing the softened criminal responsibility for this crime. According to one of them, the article is relevant but it needs to be improved; according to the second point of view, it is subject to exclusion and the guilt of such a murder should be criminalized on general grounds for a classified murder. The author of the article speaks in favor of the latter point of view.

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