Alvaro+Pires

Pires · Presents an exploration of the interaction of economic, political, juridical/penal systems in contemporary society, as well as an elaboration of an alternative normative model. o No direct emphasis on norms of behaviour. The model emphasizes a way of conceiving of and constructing an institutional solution to normative transgressions in criminal law. · Systematic, autonomous form appeared in late 18th and early 19th centuries. · A system internal to the law that modifies the law through the creation of diverse legal sub-systems. Serves to: o Juxtapose behavioural norms (1st degree) with norms of sanction and the application of law (2nd degree). o Reaffirm medieval norm by which the severity of sanction indicates the importance of the behavioural norm. · These two factors create an illusion of necessity and identity surrounding the nature of association between crime and punishment. They appear equally obligatory and based on the concept that sanction depends on the criminal act being the result of a direct intention of harm. They also appear to simplify the concept of criminal sanction and support the maxim of “no crime without punishment”. Primary aspects: · 1. Creation of a double normative expectation: behaviour and sanction. Gives a false impression that criminal law is founded on imposing the same punishment on all who display the same behaviour. · 2. This system is composed of classical theories of punishment as well as certain modern outlooks on alternative forms of punishment. · 3. Reinforces the right of punish as an obligation rather than an authorization. Therefore, the certainty of punishment carries more weight than its severity. · 4. The system is pre- or trans-political; it is independent of political visions of the world. Changes in the 1960s/70s: · A number of changes occurred during this period, including the diversification of forms of criminal procedure, the use of imprisonment as an increasingly exceptional punishment, and the beginnings of a restorative justice movement. · More importantly, a link between criminal law and human rights was developed, leading to a greater humanization of the law. · The changes of this era have been maintained, but are counterbalanced by the system of rationality in criminal law. · Beck (1986, 1994) developed the concept of the risk-based society. This describes a phase in the evolution of society in which risk of many sorts is increasingly tolerated (and critiqued,) in contrast to the control and security that traditionally engendered industrial society. · Risk is linked to decision: there is consciousness in the decision to accept the risks inherent to an activity. <span style="font-family: Symbol; mso-bidi-font-family: Symbol; mso-fareast-font-family: Symbol; msobidifontfamily: Symbol; msofareastfontfamily: Symbol; msolist: Ignore;">· New industrial dangers are distinct from their predecessors. In particular, they are more self-generated by industry itself rather than linked to natural dangers. Modern risks... <span style="font-family: 'Courier New'; mso-fareast-font-family: 'Courier New'; msofareastfontfamily: 'Courier New'; msolist: Ignore;">o are produced under normal and legal conditions, while others are produced under extraordinary circumstances. <span style="font-family: 'Courier New'; mso-fareast-font-family: 'Courier New'; msofareastfontfamily: 'Courier New'; msolist: Ignore;">o tend to be global in reach and unlimited in time and space. <span style="font-family: 'Courier New'; mso-fareast-font-family: 'Courier New'; msofareastfontfamily: 'Courier New'; msolist: Ignore;">o cannot be attributed to someone or something in particular under the rules of causality, culpability and responsibility. <span style="font-family: 'Courier New'; mso-fareast-font-family: 'Courier New'; msofareastfontfamily: 'Courier New'; msolist: Ignore;">o may not be incorporated into economic or predictive (i.e. insurance) systems of compensation. <span style="font-family: Symbol; mso-bidi-font-family: Symbol; mso-fareast-font-family: Symbol; msobidifontfamily: Symbol; msofareastfontfamily: Symbol; msolist: Ignore;">· Rationality in the criminal system links certain values to a disposition to express these values through punishment //– i.e.// expression of society’s affection for animals through strict punishment for those who abuse animals. <span style="font-family: Symbol; mso-bidi-font-family: Symbol; mso-fareast-font-family: Symbol; msobidifontfamily: Symbol; msofareastfontfamily: Symbol; msolist: Ignore;">· There naturally exists a mechanism of self-deprecation within the criminal system due the confrontation between external reality and the way in which rationality in criminal law is applied. <span style="font-family: Symbol; mso-bidi-font-family: Symbol; mso-fareast-font-family: Symbol; msobidifontfamily: Symbol; msofareastfontfamily: Symbol; msolist: Ignore;">· The system of criminal law can only be neutralised through mutation; this is accomplished by contact with general social transformation. <span style="font-family: Symbol; mso-bidi-font-family: Symbol; mso-fareast-font-family: Symbol; msobidifontfamily: Symbol; msofareastfontfamily: Symbol; msolist: Ignore;">· Through systematic socio-economic decision-making, society also produces risk in relation to social relations. <span style="font-family: 'Courier New'; mso-fareast-font-family: 'Courier New'; msofareastfontfamily: 'Courier New'; msolist: Ignore;">o This can produce significant human cost without an immediately identifiable subject. <span style="font-family: Symbol; mso-bidi-font-family: Symbol; mso-fareast-font-family: Symbol; msobidifontfamily: Symbol; msofareastfontfamily: Symbol; msolist: Ignore;">· Increased risks and new dangers are associated with economic globalisation. There is also an associated weakening of traditional mechanisms of social defence and pacification, such as unions and social assistance projects.
 * __ 1. Aspects of modern penal rationality as a system of thought __**
 * __ 2. Risk-based society – a new social environmental for the criminal systems __**
 * i) Industrial dangers and the modern rationality of criminal law **
 * ii) Socio-economic dangers and rationality in modern criminal law **