دانلود رایگان مقاله انگلیسی مشروعیت اخلاقی حقوق جزا - الزویر 2018

ABSTRACT

The paper argues that the model of ethical legitimacy of criminal law should be welcomed. Two types of legitimacy may be recognized - primary and secondary. Primary legitimacy derives its validity from its coherence with ethical principles of responsibility, thus together shaping a message about what is right and wrong. Under this interpretation, severing of the ties between law and ethics does not mean that criminal law ceases to bind in the formalistic sense. Clearly, however, in such a case it loses one of the fundamental rationales for its validity, and it becomes increasingly more difficult to enforce it. Secondary legitimacy, contemporarily often considered the only one, reposes the validity of criminal law in decisions of an authorized legislator, thus deciding upon the bindingness of normative determinations (however, other constructs may also perform this function). Justifiability of ethical legitimacy of criminal law, where the principle of dignity of the person is dominant, is shown by reference to the example of unconscious nonintentionality. Of course, ethical legitimacy of criminal law and the choice of a constitutional anthropological vision have implications not only for this institution. Others include the theory of a criminal act, attempt, assignment of liability for a consequence, defences and errors.

6. Conclusion

Above, I proposed a conception of ethical legitimacy of criminal law that is founded upon the principle of dignity of the person. Still, having read the paper one could ask: why should we debate the problem of ethical legitimacy of criminal law at all? There are at least several answers to a question so stated. First, the paper seeks to respond to the need to instruct on the ways of thinking about criminal liability. I do not refer here to historical sources or the origins of particular institutions and instruments, which is an interesting research topic in and of itself, but rather to intellectual sources, a conceptual context in which certain solutions in the realm of criminal liability we are accustomed to were shaped and embraced. For no one believes, I hope, that they are a special invention of contemporaneity or that they are traced back to some all-encompassing wisdom of a rational legislator. It is also untenable to think the shape of the principles of criminal liability is a result of coincidence, an effect of random concomitance of various circumstances. Instead, it appears that the constructs discussed here were formed throughout centuries under the influence of moral experience and ever-developing convictions regarding the scope of responsibility of a person. Ethics, particularly where practically applied, is a domain mastering of which necessitates lengthy experience amassed for generations, and one that is still open to new challenges. Criminal law too, a state ethical code, as it were, follows the ethical experience.