62 research outputs found
A Legitimacy-based Approach to EU Criminal Law: : Maybe We Are Getting There, After All
Get PDFEuropean Union (EU) law is known for its strong emphasis on effectivity and more generally for its instrumental character. This is not foreign even to European criminal law, a feature which creates some tension between the EU criminal law and criminal law in the national setting. EU Framework Decisions and Directives often require the Member States to criminalize certain forms of conduct with sanctions that are ‘Effective, Dissuasive and Proportionate’. In this article, I try to show that it would be timely to look at EU criminal law from an alternative point of view, as a more mature law. I call this a legitimacy-based approach. Such a reading would ease some of these tensions. It would also be helpful in developing a criminal policy for the EU, a policy which would be realistic and pragmatic. And it would be easier to look at EU criminal law from the point of view of justice. In order to get there, we need to see where the (current) narrow deterrence argument gets is wrong or one-sided. Some social theory is needed in order to make the point.Peer reviewe
Towards a Global Rule of Law : Global law in the Context of Law and Development Studies
Get PDFRecent developments in legal and social theory have rendered it necessary to define what we mean by justice and rule of law. Marcelo Neves has contributed to the theory of a rule of law state, for instance, by assessing the merits of Habermasian thought using, a. o., tools of the social systems theory. In this article I will discuss the problem, identified by Neves, that a rule of law state does not always emerge naturally. He talks about the deficiences known in 'peripheric modernity'. As regards development studies, legal issues have made their way onto the agendas since rule of law, democracy and human rights are relevant for realizing almost any social development goal. I will discuss the recent developments on a global level by using materials also from law and development studies. Even more than the Rawlsian or Habermasian concept of justice, the work of Amartya Sen has been influential in these debates. Sen has presented his pragmatic and comparative view about justice as an alternative to the comprehensive theoretical models which cannot be met in the context of the developing countries. The role of rule of law and justice in the development of the societies is further underlined when taken into account of the grand challenges of today. In this article we discuss the role of rule of law as part of UN Sustainable Development Goals (Agenda 2030) and also present the work done by the so-called Venice Commission in this area. One important observation is that the rule of law needs to be embedded in the culture of the society. We face a paradox: in order for the law to work properly, we need to develop a non-instrumental approach towards itPeer reviewe
En kritik av kritiken - Möjligheten till begränsande sållningsargument vid kriminaliseringsbeslut. En diskussion kring Claes Lernestedts doktorsavhandling.
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