The End of Doctrine? On the Symbolic Function of Doctrine in Substantive Criminal Law
Ferry de Jong
Utrecht University School of Law; Utrecht University School of Law
October 14, 2011
Utrecht Law Review, Vol. 7, No. 3, pp. 8-45, October 2011
Recently, there have been various developments within Dutch substantive criminal-law doctrine that in some important ways suggest a shift towards a common-law conception of judicial interpretation in different topics which are central to substantive criminal law. The developments suggest that criminal-law doctrine in the Netherlands is becoming sketchier and is losing some theoretical profundity. Building on Cassirer's philosophy of symbolic forms, Shapiro's planning theory of law, and Wittgenstein's considerations on rule-following, this article aims to contribute to a description of the independent function of doctrine in substantive criminal law, by addressing the question as to how, and in what sense, doctrine 'helps' the court in applying the statutory and non-statutory criminal-law norms. It is argued that the law constitutes a 'symbolic form' that is to some extent disassociated from the social life-world, and that is construed by way of sophisticated, shared forms of 'social planning'. These forms of social planning form parts of a 'practice' governed by a specific 'legal point of view'. It is further argued that criminal-law doctrine, in a radical sense, comprises a form of proceduralization, by means of which the adjudicating judge is 'directed' to a certain position within the criminal law's symbolically construed space. It is concluded that criminal-law doctrine fulfils an important function in 'situating' the judge, and in 'prompting' or 'compelling' the judge, from his subjective position, to apply a criminal-law norm in an objectively correct manner.
Number of Pages in PDF File: 38
Keywords: doctrine, legal dogmatics, rules, rule-following, plans, symbolic formAccepted Paper Series
Date posted: October 26, 2011
© 2013 Social Science Electronic Publishing, Inc. All Rights Reserved.
This page was processed by apollo6 in 0.407 seconds