l proved unless they are manifested in human behaviour. Here then we have the core rule of criminal law, which gives it its main protective force: punishment is acceptable only if
- in a legal procedure has been found (formal aspect) that
- the citizen’s behaviour fell within the terms of a more or less precise prohibitive rule or was not in conformance with a more or less precise instructive rule (substantive aspect).
Here we also find the cornerstones for an effective defence.
Because too much protection would even prevent a well-deserved punishment, the need to punish sinners and the need to protect the citizens against public government are symbiotic. There should be a balance between (the effects of) protective rules and the need to punish. This is strongly reflected in the way formal and substantive criminal law are constructed; many rules of criminal law are more 'punishing' than 'protective'. Nevertheless the raison d' être of criminal law as a field of law is determined exclusively by its protective aspects. The aims of criminal law are decidedly different from the aims of punishment.
We saw that - in principle - so-called substantive law does not create norms; it only indicates what norms may be maintained by punishment. But of course this is only the principle. Substantive law does formulate the norms, and in this way helps both to determine them and to influence their content. One of the main features of this process is that the basic norms (thou shalt not kill, thou shalt not steal, etc) are divided into a broad range of more specific norms and norms that are only meant to make it possible to comply with the basic norms (keep to the right when driving) or to control compliance (thou shalt keep books). This differentiation certainly aims at regulating the community; but it also provides for the need to clarify the norm. Substantive law gives meaning to the rule that criminal acts should be proven before they are punished; it does so by determining what exactly should be proven. Substantive law is less substantive than it seems to be!
The violation of the norm as specified by statute law has to be translated into an indictment; the prosecutor does not have to prove that the law has been violated, but rather has to prove that the indictment is correct. There are many different ways this has been implemented in domestic law; but the differences primarily have to do with the difficult question of the extent to which the judicial decision may be at variance with the original indictment. The principle seems to be the same everywhere: no punishment without a charge of illegal behaviour as formulated in an indictment and proven in a procedure guaranteeing the possibility of an effective defence.
II Showing intent
Only illegal behaviour may lead to punishment; a 'criminal mind' alone is not enough. But there should also be a mens rea; illegal behaviour in itself is insufficient, too. Although in many cases involving minor offences it is not necessary to prove a mens rea and it is up to the defendant to show that he could not help what he did, or even was justified in doing what he did, the prosecutor often has to prove intent before punishment is allowed. In other cases (proof of) intent will make it possible to impose a heavier penalty than without such proof. Generally the statutes governing criminal
l proved unless they are manifested in human behaviour. Here then we have the core rule of criminal law, which gives it its main protective force: punishment is acceptable only if
- in a legal procedure has been found (formal aspect) that
- the citizen’s behaviour fell within the terms of a more or less precise prohibitive rule or was not in conformance with a more or less precise instructive rule (substantive aspect).
Here we also find the cornerstones for an effective defence.
Because too much protection would even prevent a well-deserved punishment, the need to punish sinners and the need to protect the citizens against public government are symbiotic. There should be a balance between (the effects of) protective rules and the need to punish. This is strongly reflected in the way formal and substantive criminal law are constructed; many rules of criminal law are more 'punishing' than 'protective'. Nevertheless the raison d' être of criminal law as a field of law is determined exclusively by its protective aspects. The aims of criminal law are decidedly different from the aims of punishment.
We saw that - in principle - so-called substantive law does not create norms; it only indicates what norms may be maintained by punishment. But of course this is only the principle. Substantive law does formulate the norms, and in this way helps both to determine them and to influence their content. One of the main features of this process is that the basic norms (thou shalt not kill, thou shalt not steal, etc) are divided into a broad range of more specific norms and norms that are only meant to make it possible to comply with the basic norms (keep to the right when driving) or to control compliance (thou shalt keep books). This differentiation certainly aims at regulating the community; but it also provides for the need to clarify the norm. Substantive law gives meaning to the rule that criminal acts should be proven before they are punished; it does so by determining what exactly should be proven. Substantive law is less substantive than it seems to be!
The violation of the norm as specified by statute law has to be translated into an indictment; the prosecutor does not have to prove that the law has been violated, but rather has to prove that the indictment is correct. There are many different ways this has been implemented in domestic law; but the differences primarily have to do with the difficult question of the extent to which the judicial decision may be at variance with the original indictment. The principle seems to be the same everywhere: no punishment without a charge of illegal behaviour as formulated in an indictment and proven in a procedure guaranteeing the possibility of an effective defence.
II Showing intent
Only illegal behaviour may lead to punishment; a 'criminal mind' alone is not enough. But there should also be a mens rea; illegal behaviour in itself is insufficient, too. Although in many cases involving minor offences it is not necessary to prove a mens rea and it is up to the defendant to show that he could not help what he did, or even was justified in doing what he did, the prosecutor often has to prove intent before punishment is allowed. In other cases (proof of) intent will make it possible to impose a heavier penalty than without such proof. Generally the statutes governing criminal
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