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'If Taken in Earnest': Criminal Law Doctrine and the Last Resort

By Panu Minkkinen

Abstract

This article examines the possibility of understanding the so-called ‘last resort principle’, not merely as a penological maxim, but also as a legal principle proper inferred from the principle of proportionality. After a brief overview of the philosophical questions involved, the article examines the similarities and differences between a continental (German) approach and an Anglo-American approach. It is suggested that while the Anglo-American approach understands the last resort principle more in terms of a moral restraint in the use of criminal legislation, the German approach is more inclined to infer the principle from the constitutional framework of the rule-of-law state. The article concludes by examining the relevance of the last resort principle for criminal law doctrine

Year: 2006
DOI identifier: 10.1111/j.1468-2311.2006.00441.x
OAI identifier: oai:lra.le.ac.uk:2381/3075
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