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In France, the 2021 Act regarding sexual offences recognized incest as an autonomous offence. Previously, the French Penal Code traditionally prohibited incest as an aggravating circumstance based upon minority or the family relationship between the perpetrator and the victim. The problem was that, according to the strict construction principle, the judges had to determine the sexual offence, in turn supporting the aggravating circumstance of incest. To do so, they had to look for the evidence of the lack of consent determined by “violence, constraint, threaten or surprise”. The 2021 Act is the conclusion of several controversial reforms considering this issue.
In the previous chapter, I explained that we may need to reconsider familiar formulations of fundamental principles when we apply them in new contexts. In this chapter, I ask how we might even embark on such evaluations. A traditional and commendable scholarly reflex is that we must ‘ground’ our analysis in certain and self-evident bedrock. I will show the infeasibility of this search for secure moral foundations.
I suggest a non-foundational approach, using a coherentist method: we do the best we can do with the available clues and arguments. The clues include patterns of practice, normative arguments, and casuistically-tested considered judgments. We can work with ‘mid-level principles’ to carry out fruitful analytical and normative work.
The coherentist approach accepts that our principles are human constructs, that our starting points are contingent, and that we have no guarantees of ‘correctness’. Discussion of fundamental principles is not a matter of ethical computations; it is a conversation. It is a human conversation, a fallible conversation, and nonetheless an important conversation. I also argue that coherentism offers the best explanatory and justificatory account of the method used in most criminal law theory. In other words, it is the best theory of criminal law theory.
This chapter introduces the context and objectives of the book. International criminal law is still a relatively new body of criminal law, that was constructed in a rapid transnational conversation. The time is ripe for careful systematic and normative evaluation of this corpus of law. For example, scholars have noted that some doctrines may contradict fundamental principles of justice that the system claims to uphold. The book proceeds in three steps: it explains a problem, it outlines a solution, and then it demonstrates the solution through application.
The first, preliminary, objective of the book is to demonstrate a problem. Namely, the book highlights the need for an additional type of reasoning in criminal law: ‘deontic’ reasoning, which is different from doctrinal or teleological reasoning, and engages directly with principled constraints such as the legality and culpability principles.
Second, the book outlines a method for deontic reasoning, and in particular for identifying fundamental principles. ICL poses several special challenges for identifying the appropriate principles. The book advances a liberal, open-minded, humanistic, and coherentist approach (and explains each of these features).
Third, the book dissects current controversies in command responsibility in order to demonstrate the method, its questions, and the insights it can generate.
Chapter 1 examines how ordinary antebellum Americans cherished the Constitution for enshrining their “free institutions” of freedom of speech, press, and religion as well as representative democracy and local self-government. Indeed, Americans boasted that the Constitution had given them a form of government that was superior to any other in the world. At the same time that they gloried in the Constitution, mid-nineteenth-century Americans were divided by the Constitution. Slavery, more than any other issue, drove the division. Except for a tiny group of radicals, antislavery Northerners believed the Constitution was either antislavery or at least neutral towards slave labor. Northern conservatives and some moderate Southerners held that the Constitution countenanced slavery and they accepted this as the price for a constitutional union of free states and slave states. Most white Southerners believed that the Constitution was avowedly proslavery. This three-way debate carried over to the lives and intentions of the Founders and the proper way to interpret their Constitution. Southerners believed that the Constitution was avowedly pro-slavery. This three-way debate carried over to the lives and intentions of the Founders and the proper way to interpret their Constitution.
The general narrative of international criminal law (ICL) declares that the system adheres in an exemplary manner to the fundamental principles of a liberal criminal justice system. Recent scholarship has increasingly questioned the adherence of various ICL doctrines to such principles. This article scrutinizes the discourse of ICL – the assumptions and forms of argumentation that are regarded as sound reasoning with appropriate liberal aims. This article argues that ICL, in drawing on national criminal law and international human rights law, absorbed contradictory assumptions and methods of reasoning. The article explores three modes by which the assumptions of human rights liberalism subtly undermine the criminal law liberalism to which the system aspires. These modes include interpretive approaches, substantive and structural conflation, and ideological assumptions. The identity crisis theory helps to explain how a system that strives to serve as a model for liberal criminal justice systems has come to embrace illiberal doctrines that contradict the system's fundamental principles.
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