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 |
Table of Contents provided by Ingram. All Rights Reserved. |
The New copy of this book will include any supplemental materials advertised. Please check the title of the book to determine if it should include any access cards, study guides, lab manuals, CDs, etc.
The Used, Rental and eBook copies of this book are not guaranteed to include any supplemental materials. Typically, only the book itself is included. This is true even if the title states it includes any access cards, study guides, lab manuals, CDs, etc.