Organizing the Populace in Criminal Policy (From Criminal Law in Action: An Overview of Current Issues in Western Societies, P 101-109, 1988, Jan van Dijk, Charles Haffmans, et al., eds. -- See NCJ-126687)

• NCJ Number: 126694
• Author(s): M Delmas-Marty
• Date Published: 1988
• Length: 9 pages
• Sale Source: Kluwer Law International
• Publication Type: Survey (Cross-Cultural)
• Language: French
• Country: Netherlands

Annotation

This article explores how the penal code can realistically represent the values of a pluralistic society.

Abstract

The foundation of any penal law is a consensus of society on particular moral values which a particular offense has violated. Consequently, a punishment not only acts as a deterrent, but also reasserts the existence of a collective conscience in that society. The difficulty for the modern legislator lies in deciding in which areas of a pluralistic society such consensus, in fact, exists. If a law is morally supported by one part of the population, but rejected by another, the law could divide the society even more. In such cases, legislators might seek a solution to the problem not through criminal law, but in a different area of the justice system. The idea of justice also implies that the punishment must be proportional to the offense. The article suggests three indicators found in European criminal policy in which many existing punishments should be re-evaluated and possibly reassigned to a different branch of the justice system: (1) the personal and collective importance of the moral value which an offense has violated, (2) the qualitative and quantitative damage which has occurred, and (3) circumstances surrounding the offense (such as whether the offense was committed deliberately or due to negligence, or whether recidivism is involved). It is suggested that policy-makers find ways of keeping in touch with the moral values of the constituents they represent so that their laws do justice to the complexity of modern societies.