The Owl of Minerva Essays on Human Rights

by Zupancic, Bostjan

• ISBN13: 9789077596470
• ISBN10: 907759647X
• Format: Hardcover
• Copyright: 2008-01-04
• Publisher: Eleven International Publishing

Summary

The title of this book is taken from G.W.F. Hegel and refers to the idea that philosophy cannot be prescriptive because it understands only in hindsight. The same holds true for conceptions of human rights. In these thought-provoking essays, the author ex

Table of Contents

Preface	p. xi
Human Rights in the Context of Constitutional Criminal Procedure	p. 1
Introduction	p. 3
Adjudication and the Rule of Law	p. 13
From Combat to Contract: What Does the Constitution Constitute?	p. 15
Adjudication as the Surrogate of Force and Violence	p. 23
'Rule of Law' and 'Law and Order' Necessitate each other	p. 31
Substantive and Procedural Law	p. 36
Truthfinding and Impartiality in the Criminal Process	p. 43
Introduction	p. 43
Difference Between Civil and Criminal Procedures	p. 47
The Criminal Process: Conflict Resolution or Truthfinding?	p. 57
The Incompatibility Between Truthfinding (Investigation) and Impartiality (Adversariness)	p. 65
Investigation and (Im)partiality	p. 66
The Procrustean Tendency	p. 71
Adjudication and Impartiality	p. 75
Impartiality and the Criteria of Essentiality	p. 80
Conclusion	p. 84
The Crown and the Criminal: The Privilege Against Self-Incrimination	p. 87
The Privilege as a Human Right	p. 87
The Logic of the Privilege Against Self-Incrimination	p. 92
On the Power to Make Crimes	p. 103
The Procedural Principle of Legality	p. 108
Autonomous and Ancillary Procedures	p. 110
Procedural Sanctioning	p. 114
The Need for Procedural Rights	p. 114
The Need for Procedural Sanctioning	p. 115
Sanctioning in Substantive Fashion	p. 117
Sanctioning by Procedural Fashion	p. 118
Impact on Outcome	p. 119
Importance of Issue, Truth and Impartiality	p. 120
The Procedural Principle of Legality	p. 122
Exclusionary Rule: The Alter-Ego of the Privilege Against Self-Incrimination	p. 125
Origin	p. 127
Scope	p. 129
Is the Rule Prescriptive or Instrumental	p. 132
Comparative and International Aspects	p. 136
An Analysis of the Substantive Definition of Torture Deriving From Article 1 of the Convention Against Torture	p. 140
The Definition of Torture as per Article 1(1) of the Convention	p. 141
Elements of the Definition of Torture as a Criminal Offence (Corpus Delicti)	p. 144
Presumption of Innocence	p. 146
Conclusion	p. 151
Plea Bargaining	p. 159
Conclusion	p. 169
Human Rights in the Context of Substantive Criminal Law	p. 173
Introduction	p. 175
Beccaria: Theories on Punishment and Legal Formalism	p. 179
On Punishment	p. 181
The Origin of Punishments and the Right to Punish	p. 181
Mildness of Punishments	p. 186
Promptness and Certainty of Punishment	p. 188
On Legal Formalism and Interpretation of Rules	p. 192
Interpretation of the Laws	p. 193
Obscurity of the Laws	p. 194
Conciseness	p. 195
The Fixed Nature of the Law	p. 197
Conclusion	p. 200
Punishment and its Influence on Normative Integration	p. 203
Introduction	p. 203
The Paradox of Punishment	p. 205
Anomie, Punishment and Effects on Normative Integration	p. 209
Theory of Punishment	p. 212
Psychological Aspect of Normative Integration	p. 216
Sociological Aspect of Normative Integration	p. 219
Durkheim's Theory of Collective Conscience	p. 219
Mead and his Theory of Punitive Justice	p. 225
Social Stability Through the Intercession of Punishment	p. 229
Normative Integration Through the Intercession of Legal Process	p. 232
Safeguards: Human Rights and the New Methods of Punishment	p. 240
Conclusion	p. 243
On Legal Formalism: The Principle of Legality in Criminal Law	p. 245
Introduction	p. 245
The Nature of Legal Concepts, Norms or Rules	p. 249
Scientific Norms vs. Legal Norms	p. 249
Extrinsic and Intrinsic Norms	p. 252
The Negation of Norms	p. 257
Concept and Reality	p. 260
André-Vincent and Engisch	p. 261
The Positivist Position	p. 265
The Normative-Systematic Position	p. 268
Hegel and Marx	p. 271
Unger	p. 273
The Principle of Legality	p. 276
The Dialectic or Antinomy of Legal Formalism	p. 276
Purposive Legal Reasoning	p. 281
Criminal Responsibility under Mistake of Law	p. 284
The Limits of Subjectivisation	p. 290
The Norm and the Policy	p. 292
The Negative Aspects: Ex Post Facto Laws, Vague Laws and Nonlaws	p. 294
The Positive Aspects: Analogy Lato Sensu and Analogy Inter Legem - Latent Purposive Legal Reasoning	p. 299
Conflict and Form in Law	p. 304
Conflict and Legal Regulation	p. 304
Conflict and the Principle of Legality in Criminal Law	p. 310
The Illusion of the Major Premise	p. 315
The Nature of the Minor Premises	p. 319
The Problem of the Burden of Proof	p. 321
Judicial Interpretation	p. 332
Consequences of the Myth of the Principle of Legality	p. 339
The Continental Criminal System	p. 339
The Anglo-Saxon Criminal System	p. 342
Conclusion	p. 344
Conclusion	p. 347
Essays on Human Rights in the Context of International and Constitutional Law	p. 349
On the Interpretation of Legal Precedents and of the Judgments of the European Court of Human Rights	p. 351
The Relationship Between Constitutional Courts and the Jurisprudence of the European Court of Human Rights	p. 351
Checks and Balances Between the Three Branches of Power	p. 355
Interpretation of Legal Precedents and the Judgments of the European Court of Human Rights	p. 366
The Doctrine of Precedents	p. 368
How to Read and Interpret the Judgment	p. 376
The Erga Omnes Effect of ECHR Law	p. 380
The Individual in Litigation with the State	p. 383
The Individual in Direct Litigation with the State	p. 386
The Individual in Indirect Litigation with the State	p. 389
Conclusion	p. 391
Access to Court as a Human Right According to the European Convention of Human Rights	p. 393
Introduction	p. 393
'Access to Court' Doctrine According to the Case Law of the European Court of Human Rights	p. 397
Basic Cases Establishing the Doctrine	p. 397
Access to Court According to the Convention	p. 397
The Penumbras and the Umbra of Access to Court	p. 399
Difference Between Civil and Criminal Cases with Respect to Access to Court	p. 402
Recent Cases	p. 404
Some Tentative Conclusions	p. 410
Morality of Virtue vs. Morality of Mere Duty or Why Do Penalties Require Legal Process Whereas Rewards Do Not?	p. 413
Fuller's Morality of Duty vs. Morality of Aspiration	p. 415
The Function of Legal Formalism and Criteria	p. 418
The Centrality of Conflict	p. 421
Conclusion	p. 427
Bibliography	p. 429
Index of Authors Cited	p. 441
Index of Topics	p. 445
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