Criminal systems have assumed different features in various historical periods. The present essay intends to study the ordering factors, which have been at the base of such developments, as ways of a juridical dimensioning of justice. It is a question of considering these systematic profiles from their relationship with the socio-political context which characterises the demand for justice. From such point of view, in the European legal experience which unwinds starting with the Late Middle Ages, two great approaches can be traced out; the watershed is represented by the use, at the end of the 18th century, of the statute law as an ordering device. In the time of ius commune, the demand for justice springs from a pluralistic socio-political organisation and is, therefore, crossed by fields of tension; here the law is the tool of determining justice. In the time of legality principle, instead, the fields of tension of justice are absorbed in the political decision, which produces the statute law, and the law, then, is reduced to being a mere tool of administering justice. The essay point out, first of all, the fields of tension that have been at the basis of the dynamics of determining justice; then it will be analysed how the order layout of the trial conforms to this original connotation of facere iustitiam; thereafter, concentrate on the task that, in that context, is performed by the judge, concluding with a reflection upon the systematic framework where the new perspective of administering justice emerges.
Dimensions of Justice and Ordering Factors in Criminal Law from the Middle Ages till Juridical Modernity,
MECCARELLI, Massimo
2013-01-01
Abstract
Criminal systems have assumed different features in various historical periods. The present essay intends to study the ordering factors, which have been at the base of such developments, as ways of a juridical dimensioning of justice. It is a question of considering these systematic profiles from their relationship with the socio-political context which characterises the demand for justice. From such point of view, in the European legal experience which unwinds starting with the Late Middle Ages, two great approaches can be traced out; the watershed is represented by the use, at the end of the 18th century, of the statute law as an ordering device. In the time of ius commune, the demand for justice springs from a pluralistic socio-political organisation and is, therefore, crossed by fields of tension; here the law is the tool of determining justice. In the time of legality principle, instead, the fields of tension of justice are absorbed in the political decision, which produces the statute law, and the law, then, is reduced to being a mere tool of administering justice. The essay point out, first of all, the fields of tension that have been at the basis of the dynamics of determining justice; then it will be analysed how the order layout of the trial conforms to this original connotation of facere iustitiam; thereafter, concentrate on the task that, in that context, is performed by the judge, concluding with a reflection upon the systematic framework where the new perspective of administering justice emerges.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
