Criminal Justice in a Democracy: Towards a Relational Conception of Criminal Law and Punishment

被引:3
|
作者
Foque, Rene [1 ]
机构
[1] Katholieke Univ Leuven, Fac Law, Ctr Study Foundat Law, Tiensestr 41, B-3000 Louvain, Belgium
关键词
History of ideas; Democracy; The rule of law; Punishment; The human condition; Citizenship; Relational conception of law; Legal history; Legal anthropology;
D O I
10.1007/s11572-008-9063-4
中图分类号
D9 [法律]; DF [法律];
学科分类号
0301 ;
摘要
This article starts from the observation that in classical Athens the discovery of democracy as a normative model of politics has been from the beginning not only a political and a legal but at the same time a philosophical enterprise. Reflections on the concept of criminal law and on the meaning of punishment can greatly benefit from reflections on Athenian democracy as a germ for our contemporary debate on criminal justice in a democracy. Three main characteristics of the Athenian model will be analysed: the self-instituting capacity of a democracy based on participatory and reflective citizenship, political power as the capacity of citizens for co-operating and co-acting with others, and the crime of hubris as one of the key issues in Athenian criminal law. These analyses will lead to the conclusion that one of the key issues of a democratic legal order lies in its capacity of recognizing the fragility of the human condition and of developing workable and effective standards of justice in that context. A relational conception of criminal law and punishment, based on proportionality, reflexivity, mutual respect and responsibility fits best with a democracy under the rule of law.
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页码:207 / 227
页数:21
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