The Criminal Trial and the Legitimation of Punishment

Abstract

Criminal law theory traditionally has concerned itself almost exclusively with substantive criminal law, and with the general part of substantive criminal law in particular. Legitimizing the practice of punishment, however, requires legitimizing each of its aspects: the definition of criminal norms (the realm of substantive criminal law) as well as their application, which itself can be divided into imposition (the realm of criminal procedure, or the criminal process narrowly speaking) and infliction (the realm of prison law or, more correctly, the law of execution). For purposes of this paper, it will be taken for granted that the fundamental principle of legitimacy in a modern democratic state is autonomy, or self-determination. Taking a broadly comparative approach, this paper investigates the extent to which the criminal process narrowly speaking, and the criminal trial more specifically, is consistent with the principle of autonomy.

Keywords: Criminal process, trial, legitimacy, punishment, autonomy, empathy

JEL Classification: K14, K30