For more information on case law, see this article from the Yale Law Journal, Washington University Jurisprudence Review and this article from Michigan Law. The powers and authorizations mentioned so far help the accusers of (D) to gather their arguments against (D). When cases are brought before the courts, these prosecutors are usually government officials (or those to whom the state has delegated official authority). Some legal systems create space for private prosecutions. But such prosecutions can be stopped or taken over by state officials (and their delegates). These officials (and delegates) can continue the proceedings even against private opposition, even if the resistance comes from those who have been wronged by (D). In this way, the state exercises a form of control over criminal proceedings that is absent in judicial proceedings of a different nature (Marshall and Duff, 1998). Second- or third-year students may choose to take the upper-class core jurisprudence course, usually offered annually as jurisprudence. While the exact content of the core law course varies from instructor to instructor and year to year, the course generally provides an overview of natural law, legal positivism, and realism. These three competing representations of the nature of legal authority, duty, and reasoning have already served as the framework for most discussions of jurisprudence in the United States. Georgetown`s fundamental law courses typically go beyond the triad of natural law, positivism, and realism and include discussions of critical legal studies, feminism, and critical racial theory. Some of the materials covered in the Core Law course will be familiar to students who opted for Program B in the first year of Law School or who opted for specific electives of Program A in the second semester of their first year.
But all upper-class students are encouraged to deepen their understanding of law issues through upper-class jurisprudence courses and seminars or other upper-class courses and seminars. Jewish law is one of the oldest, if not the oldest, legal systems in the world that is still active today. In addition, the teachings and principles of Hebrew jurisprudence have had a lasting influence on the Western legal tradition. While some of his innovations have been incorporated into general legal thought to such an extent that they seem obvious to most, other concepts of Jewish law remain unique and fundamentally different from mainstream legal theories. The contribution of Hebrew jurisprudence is therefore not only historical; It retains the power to challenge our legal world by indicating new directions in legal thinking. The above remarks concern the type of value that justifies criminal law. We can also ask ourselves who is able to realize this value. From the two views described above, the value of the criminal law rests on a relationship in which everyone finds themselves. If this value is to be realized, someone must act on behalf of those in the relationship. In most criminal law systems, work is done by the state – state agents create, transform and enforce criminal laws. Some argue that this is the only option in a legitimate criminal justice system. The value of criminal law, it is argued, is essentially public – it is a value that can only be realized by state agents, not even in principle.
This view can be developed in several ways. Let`s look at the Kantian point of view again. Some argue that coercion only guarantees independence when coercion speaks on behalf of all those who are forced. Otherwise, it`s just another violation of independence. Only state actors can speak for all of us. Criminal law enforcement must therefore remain in their hands (Thorburn 2011a, 98-99). Advocates of the community vision tell a similar story. If the value of criminal proceedings is that they express the community`s verdict on wrongdoing, and if only state agents can convey our collective judgment, trials must be conducted and sanctions imposed by these agents (Duff 2013a, 206). From either angle, it is impossible for individuals to recognize the values that justify the criminal law. If these arguments are adopted, they have obvious implications for debates about the privatization of prisons and police services (Dorfman and Harel 2016). They also offer us a meaning in which criminal law theory must be political. It must ask whether there are essentially public goods and what role they play in justifying the existence of criminal law (Harel 2014, 96-99).
Now consider (HPP). We can imagine a world where we could flip a switch and send an electronic signal to (D`s) brain, whose only effect would be that (D) wouldn`t act wrong. Whatever one may think of this means of prevention, it is not the means we use when we apply the criminal law. Without perfect compliance, criminal law prevents injustice by publicly laying charges, condemning people as evildoers, and punishing them for their wrongs. Public accusations often persist even if nothing comes of it. Punishment is inherently harmful. The lives of family and friends are collateral damage because the prospects of (D) are reduced. Some argue that we can justify causing such harm – at least if the state does the harm – if it is a necessary and proportionate means of preventing people from being harmed. It is therefore inadmissible to incriminate if this condition is not met. Daher (HPP) (Raz 1986, 418-420; Edwards, 2014, pp.
259-262). Some find the general justification of the criminal law in a value that is neither relational nor essentially public. Consider avoiding harm or preventing moral misconduct. A number of authors invoke one or both values to justify the existence of criminal law (Feinberg 1987, 146-155; Alexander and Ferzan, 2009, p. 17; Simester and von Hirsch 2011, 29-30). Since there are undue harms (think sports injuries caused without criminal act) and harmless injustices (think botched conspiracies or undiscovered attempts), the above values do not always grow and decrease together. One possibility is that the criminal law`s preoccupation with injustice stems from its concern for harm: the criminal law should be an injustice (e.g. conspiracy to infringe) if and because it prevents harm (e.g., harm itself).
Another possibility is that the criminal law`s concern for damages stems from its concern for injustice: the criminal law should prevent harm (e.g., bodily harm) if and because the harm was wrongly caused (e.g., by bodily harm) (Feinberg 1987, 151-155; Moore, 1997, pp. 647-649).