Tesi etd-10022017-125632
Link copiato negli appunti
Tipo di tesi
Perfezionamento
Autore
NEMEDI, MARK
Indirizzo email
nemedimark@gmail.com
URN
etd-10022017-125632
Titolo
Relativism and the Purpose of Criminal Law
Settore scientifico disciplinare
IUS/17
Corso di studi
SCIENZE GIURIDICHE - Individual Person and Legal Protections
Commissione
relatore Prof. DI MARTINO, ALBERTO
Membro Prof.ssa MORGANTE, GAETANA
Membro Prof. PAPA, MICHELE
Membro Prof.ssa MORGANTE, GAETANA
Membro Prof. PAPA, MICHELE
Parole chiave
- criminalization
- functionalism
- legal good
- relativism
- the purpose of criminal law
Data inizio appello
02/04/2019;
Disponibilità
completa
Riassunto analitico
The doctrine of legal goods has long been considered to be one of the most important fundamental theories in German criminal law. It is also subject to severe relativistic critique. Internal relativism claims that the doctrine is too vague, it delivers no clear definition and therefore is liable to be discarded. External relativism claims that it is possible to conceive of the concept of criminal law by entirely normative means. The research sought to answer that critique by finding a primary benefit of legal goods which is prior to the elaboration of these critiques.
It undertakes, first, a philosophical analysis of the context of consciousness and the pragmatic method of acquiring knowledge as a plausible answer to the complexity and relativity arising in that context. It asserts that legal goods are necessary to obtain knowledge, in the pragmatic method, about the identity of criminal law norms. Secondly, it confronts a theory of criminal law conceived with legal goods with the purely normative functionalism defended by Günther Jakobs. The confrontation becomes possible by asserting that Jakobs proposes his system to have effects on the behaviour of individuals, persons in the society. By inversion, the effects on individual consciousness imply that individuals need to consciously guide themselves according to norms. This suggests that the two doctrines are comparable along their effects on individuals and the knowledge that can be won of that.
The research concluded that legal goods are a necessary part of guaranteeing an epistemic principle. This epistemic principle is prior to the above critiques in that it is the based upon which a doctrine of legal goods is proposed. It asserts, in essence, that the violation of the legal good represents the consequence necessary for the verification of the criminal law norm as knowledge about the world. Thus, its primary benefit is safeguarding that the development and interpretation of criminal law norms rest on knowledge of the world and are treated as such. It follows that both the internal and external relativist critique shall be rejected as calling into question the relevance of the doctrine of legal goods. The research concludes by suggesting that future research methods should be further externalized to embrace the implications of this epistemic principle.
It undertakes, first, a philosophical analysis of the context of consciousness and the pragmatic method of acquiring knowledge as a plausible answer to the complexity and relativity arising in that context. It asserts that legal goods are necessary to obtain knowledge, in the pragmatic method, about the identity of criminal law norms. Secondly, it confronts a theory of criminal law conceived with legal goods with the purely normative functionalism defended by Günther Jakobs. The confrontation becomes possible by asserting that Jakobs proposes his system to have effects on the behaviour of individuals, persons in the society. By inversion, the effects on individual consciousness imply that individuals need to consciously guide themselves according to norms. This suggests that the two doctrines are comparable along their effects on individuals and the knowledge that can be won of that.
The research concluded that legal goods are a necessary part of guaranteeing an epistemic principle. This epistemic principle is prior to the above critiques in that it is the based upon which a doctrine of legal goods is proposed. It asserts, in essence, that the violation of the legal good represents the consequence necessary for the verification of the criminal law norm as knowledge about the world. Thus, its primary benefit is safeguarding that the development and interpretation of criminal law norms rest on knowledge of the world and are treated as such. It follows that both the internal and external relativist critique shall be rejected as calling into question the relevance of the doctrine of legal goods. The research concludes by suggesting that future research methods should be further externalized to embrace the implications of this epistemic principle.
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