scholarly journals The Challenge of the Bad Man

2013 ◽  
Vol 58 (2) ◽  
pp. 451-480 ◽  
Author(s):  
Michael Plaxton
Keyword(s):  
Criminal Justice ◽  
Rule Of Law ◽  
Criminal Law ◽  
Legal Order ◽  
Recent Discussion ◽  
The Rule Of Law ◽  
Criminal Justice Systems ◽  
Moral Problems ◽  
Douglas Husak

H.L.A. Hart’s insight, that some people may be guided by an offence provision because they take it as authoritative and not merely to avoid sanctions, has had an enormous influence upon criminal law theory. Hart, however, did not claim that any person in any actual legal order in fact thinks like the “puzzled man”, and there is lingering doubt as to the extent to which we should place him at the center of our analysis as we try to make sense of moral problems in the criminal law. Instead, we might find that our understanding of at least some issues in criminal law theory is advanced when we look through the eyes of Holmes’ “bad man”. This becomes clear when we consider the respective works by Hart and Douglas Husak on overcriminalization, James Chalmers and Fiona Leverick’s recent discussion of fair labeling, and Meir Dan-Cohen’s classic analysis of acoustic separation. These works also suggest, in different ways, that an emphasis on the bad man can expose the role of discretion in criminal justice systems, and the rule of law problems it generates.

European criminal justice in the European and global context

2019 ◽  
Vol 10 (1) ◽  
pp. 7-16
Author(s):  
John A.E. Vervaele
Keyword(s):  
Criminal Justice ◽  
European Integration ◽  
Rule Of Law ◽  
Criminal Law ◽  
Mutual Recognition ◽  
Integration Process ◽  
The Rule Of Law ◽  
Global Context ◽  
Criminal Justice Systems ◽  
External Dimension

European criminal justice is not only about harmonization and Europeanization of the domestic criminal justice systems but also about common criminal policies and shared values, including key values related to the rule of law. What has been achieved in the European integration process and what are the challenges ahead of us? The author assesses this in the area of harmonization of substantive criminal law and criminal procedure; mutual recognition; European judicial agencies and the external dimension of the Area of Freedom, Security and Justice.

Reaktualisasi Proses Penyidikan oleh Kepolisian Berbasis Nilai-Nilai Pancasila dan Optimalisasi Pemanfaatan Teknologi

Jurnal Hukum ◽  
2016 ◽  
Vol 31 (2) ◽  
pp. 1737
Author(s):  
Ira Alia Maerani
Keyword(s):  
Criminal Justice ◽  
Rule Of Law ◽  
Justice System ◽  
Public Prosecutor ◽  
Public Confidence ◽  
The Rule Of Law ◽  
Positive Law ◽  
Use Of Technology ◽  
The Times

Abstract                Indonesian Criminal Justice System consists of the police, public prosecutor and the courts. The role of the police investigators is certainly vital as the frontline in building public confidence in the rule of law in Indonesia. The role of the investigator is quite important in realizing society’s  justice. The era of globalization requires a pattern fast-paced, instant, measurable, and transparent of life and it requires investigators to follow the times by optimizing the use of technology. The aim of this study is to give effect to the rule of law in Indonesia that provides fairness, expediency and certainty. However, it considers to have priority of Pancasila values in the process of inquiry and investigation. The values of supreme divinity, God (religious), humanity, unity, democracy and justice are values that establish a balance (harmony) in enforcing the law. Law and its implementation can create product which meets the demands for social justice. This paper will examine the role of the investigator according to positive law currently in force as well as the role of investigator in implementing the values of Pancasila, accompanied by optimizing the use of technology. Keywords: Re-actualizing, Investigation, Police, values of Pancasila, Technology   AbstrakSistem Peradilan Pidana Indonesia meliputi institusi kepolisian, kejaksaan, dan pengadilan. Peran penyidik dalam institusi kepolisian tentunya amat vital sebagai garda terdepan dalam membangun kepercayaan masyarakat terhadap penegakan hukum di Indonesia. Peran penyidik amat besar dalam terwujudnya keadilan di masyarakat. Era globalisasi yang menuntut pola kehidupan yang serba cepat, instan, terukur, dan transparan menuntut penyidik untuk mengikuti perkembangan zaman dengan mengoptimalkan pemanfaatan teknologi. Tujuannya adalah untuk memberikan arti bagi penegakan hukum di Indonesia yakni memberikan keadilan, kemanfaatan, dan kepastian. Namun yang harus diperhatikan adalah mengutamakan nilai-nilai Pancasila dalam melakukan proses penyelidikan dan penyidikan. Nilai-nilai ketuhanan yang maha esa (religius), kemanusiaan, persatuan, kerakyatan dan keadilan merupakan nilai-nilai yang membangun keseimbangan (harmoni) dalam menegakkan hukum. Sehingga produk hukum dan pelaksanaannya memenuhi rasa keadilan masyarakat. Tulisan ini akan mengkaji tentang peran penyidik menurut hukum positif yang saat ini berlaku serta peran penyidik dalam mengimplementasikan  nilai-nilai Pancasila dengan diiringi optimalisasi pemanfaatan teknologi.Kata Kunci: Reaktualisasi,Penyidikan,Kepolisian,Nilai-nilai Pancasila,Teknologi

scholarly journals Reaktualisasi Proses Penyidikan oleh Kepolisian Berbasis Nilai-Nilai Pancasila dan Optimalisasi Pemanfaatan Teknologi

Jurnal Hukum ◽  
2015 ◽  
Vol 31 (2) ◽  
pp. 1901
Author(s):  
Ira Alia Maerani
Keyword(s):  
Criminal Justice ◽  
Rule Of Law ◽  
Justice System ◽  
Public Prosecutor ◽  
Public Confidence ◽  
The Rule Of Law ◽  
Positive Law ◽  
Use Of Technology ◽  
The Times

Indonesian Criminal Justice System consists of the police, public prosecutor and the courts. The role of the police investigators is certainly vital as the frontline in building public confidence in the rule of law in Indonesia. The role of the investigator is very big in the realization of justice in society. The era of globalization which demands a pattern of life that is fast-paced, instant, measurable, and transparent requires investigators to follow the times by optimizing the use of technology. The aim is to give effect to the rule of law in Indonesia that provides fairness, expediency and certainty. However that must be considered is the priority values of Pancasila in the process of inquiry and investigation. The values of supreme divinity, God (religious), humanity, unity, democracy and justice are values that establish a balance (harmony) in enforcing the law. Law and its implementation so that the product meets the demands for social justice. This paper will examine the role of the investigator according to positive law currently in force as well as the role of investigator in implementing the values of Pancasila, accompanied by optimizing the use of technology.Keywords: Re-actualizing, Investigation, Police, values of Pancasila, Technology

scholarly journals The idea of democracy as a substantial foundation of the legal order of the modern state

2021 ◽  
Vol 9 (1) ◽  
pp. 11-15
Author(s):  
Kirill Rakov
Keyword(s):  
Rule Of Law ◽  
Legal Discourse ◽  
Legal Order ◽  
Modern State ◽  
Modern Democracy ◽  
The Rule Of Law ◽  
Key Characteristics

The article considers the role of one of the most popular modern political and legal ideas-the idea of democracy in the formation of the rule of law of the modern state. Exploring the genesis of ideas about democracy, the author attempts to determine its meaning and place in the system of ideas that determine the modern political and legal discourse. The author, within the framework of the concept of formal and substantive foundations of the rule of law, defines the idea of democracy as an important substantive foundation of the rule of law of the modern state, describes the key characteristics of modern democracy.

Rule of Law and Common Law

2020 ◽  
pp. 166-188
Author(s):  
Mike McConville ◽  
Luke Marsh
Keyword(s):  
Criminal Justice ◽  
Rule Of Law ◽  
Policy Making ◽  
Common Law ◽  
The Rule Of Law ◽  
History Of ◽  
The Common ◽  
Locus Classicus ◽  
Law Making

This chapter argues that the conflict earlier described between the executive and the judiciary should reset the debate about the meaning of the ‘rule of law’. To this end, it explores the implications that the history of the Judges’ Rules has for both the ‘Rule of Law’ and the role of judges in relation to the common law. By shedding light on the ambiguous nature of the Rules, it first questions whether they were ‘law’, and if so, whether judges could be said to legitimate authors of them—itself a controversial and heavily contested notion. In this regard, it examines the principal justifications for judicial law-making, and questions how these might relate to other major judicially created or endorsed features of the modern criminal justice landscape, namely, state-induced guilty pleas and the Criminal Procedure Rules (CrimPR). Additionally, it challenges the locus classicus of Tom Bingham as to the meaning of the ‘Rule of Law’. By focusing on the ignored value of adversarial proceedings, it demonstrates how Bingham’s celebrated analysis of the Rule of Law is flawed and its list of ‘ingredients’ left wanting. In consequence, it argues that those transformative initiatives conceived outside formal adversary structures (including the Judges’ Rules, state-induced guilty pleas, and the CrimPR) cannot meet the tests of legitimate policy-making or the rule of law. The chapter ends by looking beyond the debate on judicial law-making in order to address a related deep-seated problem that arises from judges’ involvement in setting criminal justice policy: their entrenched homogeneity.

scholarly journals Proactive Role of Public Prosecutors in the Administration of Criminal Justice: A Way Forward for Pakistan

2021 ◽  
Vol VI (II) ◽  
pp. 27-36
Author(s):  
Muhammad Ramzan Kasuri ◽  
Ata Ullah Khan Mahmood ◽  
Ghufran Ahmed
Keyword(s):  
Criminal Justice ◽  
Rule Of Law ◽  
Justice System ◽  
Cost Effective ◽  
Public Prosecutor ◽  
The Rule Of Law ◽  
The Public ◽  
The Right ◽  
And Function

The public prosecution service is an inevitable feature of the Criminal Justice System (CJS). A key position is assigned to the public prosecutor in the administration of the CJS, who exercises considerable powers and responsibilities, who acts with independence, impartiality, and integrity. In present era, neither the rule of law can be upheld, nor can the human rights be protected without effective role of prosecution services that has become one of the essential pillars of the CJS, an essential component of the Rule of Law,powerful center having a lot of authorities and center of attraction. The world is moving towards a prosecutorial justice system. With the help of comparative and qualitative research methodology, this article aimed to analyze the role and function of the public prosecutor in the CJS of different legal systems that enable us to revamp our system in the right direction for making it efficient expeditious, and cost-effective.

Enforcing Criminal Jurisdiction in the Clouds and International Law’s Enduring Commitment to Territoriality

2019 ◽  
pp. 380-410
Author(s):  
Stephen Allen
Keyword(s):  
Cloud Computing ◽  
Criminal Justice ◽  
Data Storage ◽  
Rule Of Law ◽  
The Rule Of Law ◽  
Cross Border ◽  
Criminal Justice Systems ◽  
Legal Perspective ◽  
In Trans ◽  
Dramatic Growth

This chapter addresses how cross-border data storage by way of Cloud Computing and related criminal activities have become a major problem for criminal justice authorities. Since these authorities remain beholden to the territoriality principle and cannot search unilaterally for data located within another state’s territory, the dramatic growth in trans-border criminality means that this territorial limitation now risks undermining the extent to which individual states are able to satisfy their positive obligation to maintain the integrity of their criminal justice systems and to uphold the rule of law more generally. The chapter then considers the key proposals which have been advanced by the Cybercrime Committee in order to illustrate the ways in which the Committee has sought to address the challenges of unilateral trans-border activity in connection with the conduct of criminal investigations and to consider their viability from an international legal perspective, insofar as jurisdictional considerations are engaged.

scholarly journals Is “Public Interest” a Conceptual Category of Contemporary Polish Procedural Criminal Law?

2020 ◽  
pp. 93-104
Author(s):  
Hanna Paluszkiewicz
Keyword(s):  
Rule Of Law ◽  
Criminal Law ◽  
Public Interest ◽  
Criminal Procedure ◽  
Conceptual Category ◽  
The Rule Of Law ◽  
The Social ◽  
The Subject ◽  
State Prosecutors

This study aims at presenting conceptual category named “public interest” under the Polish procedural criminal law. The concept of “public interest”, which is the subject of this analysis, is treated as an indefinite term, functioning as a general clause, whose the task of which is to render a legal text more “flexible” by referring to a set of values outside of the system. The term “public interest” is no longer used in the provisions of the Code of Criminal Procedure. The legislator still uses many other general clauses, including the “social interest” clause. The analysis of cases in which this clause is used shows that, in fact, these two conceptual categories may not be equated, should not be used interchangeably, and are not synonymous. Although the term “public interest” is no longer a statutory term under the Code of Criminal Procedure, given the fact that it expresses values such as respect for the law and the rule of law, it should be assumed that by proper shaping of the criminal trial model and ensuring that entities performing the role of public interest advocates participate in it, these values are – at least potentially – protected. State prosecutors, in their capacity of public interest advocates and in order to properly discharge their duty to uphold the rule of law, should maintain organizational independence and procedural impartiality.

A Hard Law Approach to States Systemic Violations of Article 2 of the Treaty of the European Union

2020 ◽  
pp. 363-380 ◽  
Author(s):  
Miguel Poiares Maduro ◽  
Benedita Menezes Queiroz
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
National Level ◽  
Legal Order ◽  
Fundamental Rights ◽  
The European Union ◽  
Member States ◽  
The Rule Of Law ◽  
The Eu

The rule of law is under threat in the European Union. Systemic violations of fundamental rights are affecting the rule of law, democracy, and judicial independence in some Member States and consequently the EU legal order. The level of interdependence between the Member States and the EU legal order is such that systemic violations of those principles in the Member States end up impacting on EU compliance with the same principles. Article 7 TEU did not prove, however, to be the most effective tool to face these problems due to its political nature. The EU’s intervention in the form of infringement actions to safeguard the rule of law at the national level may be a suitable action to address some these serious violations of fundamental rights. Despite of the earlier hesitation to take a bolder action in this regard, the EU Commission, after the Court of Justice’s recent decisions in Associação Sindical dos Juízes Portuguese and LM, brought infringement proceedings against Poland challenging this country reforms that put into question the independence of its judiciary. The Court established its power of judicial review over the rule of law in the Member States in C-619/18 Commission v Poland. Ultimately, this decision highlighted the role of EU law in safeguarding the rule of law in its Member States, but more importantly in safeguarding the rule of law in the EU legal order as a whole.

Sign in / Sign up

Export Citation Format

Share Document