Kutafin University Law Review


In issue 2 on 2016 year

HOW TO DESIGN CRIMINAL LAW IN THE XXI CENTURY

DOI: 10.17803/2313-5395.2016.2.6.311―319

Author: Sakari Melander

Rubric: THE UNION OF HISTORY AND MODERNITY IN LAW PRACTICING AND MAKING

Annotation: Criminal law as such is among the most crucial branches of law, since it appears to offer the most coercive tools and means for state authorities that may be directed to—or against—the citizens. With the means of criminal law and penal legislation criminal liability may be directed toward individuals, and criminal liability is the strongest formal condemnation of the society. Because of this one would easily assume that the institutional design of criminal law should be very carefully deliberated and constructed. Contemporary criminal law is, however, often used in proactive manner, which is quite different from the traditional view that has emphasised the defensive character of criminal law. Criminal justice system seeks to intervene in criminal behaviour before the result of the criminal act has occurred. This has, inter alia, meant that a greater number of preparative offences are criminalised. In the worst case new criminal legislation is driven rather by urgency and fear than rationality and long-term discretion on best legislative solutions. This kind of legislative action is called emergency lawmaking. In this paper I will shortly examine some current developments in criminal law, where the fight against terrorism and organized crime has had a crucial role. These examples illustrate the readiness — and willingness — to use criminal law in a proactive manner. In the paper some counterforces balancing the development are also examined. Most crucially these counter forces are derived from human and fundamental rights, which should be taken seriously when designing contemporary criminal legislation.


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Keywords: Criminal justice system, criminal law, human and fundamental rights, criminal liability

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