A Reciprocal Turn in Criminal Justice? Shifting Conceptions of Legitimate Authority

23 Pages Posted: 7 Feb 2013

See all articles by Ferry de Jong

Ferry de Jong

Utrecht University School of Law; Utrecht University - School of Law

Date Written: January 31, 2013

Abstract

The past decade has seen the rise of a fierce, ongoing controversy concerning the authority of criminal courts and the legitimacy of the criminal justice system as such. This article aims to provide some much needed conceptual clarity regarding the primal subjects under discussion: To what do we actually refer when we are using the words 'authority' and 'legitimacy'? What is 'legitimate authority'? For an answer to this question, reference is made to a number of theoretical developments within (political) philosophy. The article investigates how developments within the doctrines of the general part of substantive criminal law are related to shifting contemporary views on the general conditions for a legitimate exercise of practical authority. An account of a number of interlocking developments within the doctrinal system of Dutch substantive criminal law serves as a starting point for the subsequent inquiry. It is argued that these developments exemplify shifts in the way authority is distributed over various agents involved in criminal proceedings. It is further argued that these shifts in the distribution of authority parallel notable movements within the philosophical literature on the concept of legitimate authority, that is: a movement from a rationalistic and top-down approach toward a reciprocal, bottom-up approach.

Keywords: authority, legitimacy, criminal justice, doctrines of the general part, procedural justice, reciprocity

Suggested Citation

de Jong, Ferry, A Reciprocal Turn in Criminal Justice? Shifting Conceptions of Legitimate Authority (January 31, 2013). Utrecht Law Review, Vol. 9, No. 1, p. 1-23, January 2013. Available at SSRN: https://ssrn.com/abstract=2212105

Ferry de Jong (Contact Author)

Utrecht University School of Law ( email )

Janskerkhof 3
Utrecht, 3512 BK
Netherlands

Utrecht University - School of Law ( email )

3508 TC Utrecht
Utrecht
Netherlands

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