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The Criminal Trial and the Legitimation of Punishment

THE TRIAL ON TRIAL, R.A. Duff et al. eds., 2004

14 Pages Posted: 14 Apr 2004  

Markus D. Dubber

University of Toronto - Faculty of Law; University of Toronto - Centre for Ethics

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

Suggested Citation

Dubber, Markus D., The Criminal Trial and the Legitimation of Punishment. THE TRIAL ON TRIAL, R.A. Duff et al. eds., 2004. Available at SSRN: https://ssrn.com/abstract=530122

Markus D. Dubber (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

HOME PAGE: http://www.law.utoronto.ca/faculty-staff/full-time-faculty/markus-dubber

University of Toronto - Centre for Ethics ( email )

6 Hoskin Avenue
Toronto, Ontario M5S 1H8
Canada

HOME PAGE: http://ethics.utoronto.ca

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