The Criminal Justice System: Meaning, Concepts, Functions
What is a criminal justice system? Do we need it? And, in case, how should such a system be understood and modelled in a time of transnational development and reconfiguration of the right to punish?
This project seeks answers on these types of questions, trough the elaboration of a (legal) theoretical account of the criminal justice system. The object of inquiry is the criminal justice system as a legal framework for the exercise of public penal power, i.e., basically the enactment and implementation of different kinds of institutionalized decisions concerning crimes and their punishment. It is, as a starting point, taken to consist of those normative and institutional elements that formally serves or surrounds this function – such as norms concerning the punishable offences and institutions that officially respond to the violation of these norms or that safeguard the interests of the accused.
The aspiration is, however, not in first place to provide an account about a specific (national) criminal justice system as an existing empirical legal phenomenon, or about similarities and differences between different specific systems. The aspiration is instead to provide an account of the nature and meaningof the criminal justice system at a more general, conceptual and principled level, i.e., an account of the criminal justice system as a (legal) concept or idea. Another thing is that also such a theory must integrate and builds upon knowledge about existing criminal justice systems, and more generally take empirical premises into account. On the basis of such knowledge, this project eventually seeks to elaborate an overall normative model, a principled framework, for the criminal justice system consisting of the general principles that explains and prescribes the system’s needed content, i.e., its constituting elements. Basically, these principles prescribe the systems’ content, by either prescribing certain elements, such as the presence of certain norms (such as norms that defines punishable offences, prescribes certain procedures or certain forms of punishment), functions or institutions (such as the function of investigation or the presence of a defence), or by governing the relations among such elements (such as the relation between substance and procedure). In other words, such a normative model provides an account of the principles that should steer the different elements of a criminal justice system, and their interrelations, as a whole. It could be therefore used to understand and evaluate existing or emerging (national or transnational) structures of penal power. An underlying core question of this project is, however, to what extent it is at all possible to reach at a general – or at least transnational – model for a criminal justice system. To what extent is it possible to elaborate principles that prescribe the constituting elements of any criminal justice system? Or to what extent must a criminal justice system be understood and respected as bounded to a specific legal culture? Keeping these questions in mind, this project will seek to clarify the methodological challenges and potential limitations in modeling a criminal justice system that transcend different (national) legal cultures.