By Antony Duff, Lindsay Farmer, Sandra Marshall, Victor Tadros
What are the goals of a felony trial? What social features should still it practice? and the way is the trial as a political establishment associated with different associations in a democratic polity? If we comprehend a felony trial as calling a defendant to respond to to a cost of felony wrongdoing and, if he's judged to be liable for such wrongdoing, what follows to account for his behavior? A normative idea of the trial-an account of what trials needs to be and of what ends they need to serve-must take those crucial elements of the trial heavily, yet they bring up a couple of tough questions. They recommend that the trial may be visible as a communicative method. What forms of communique may still it contain? what's the courting among such communique and the procedural rights that it generates within the pursuit of fact? at the back of such questions lie additional questions about the political legitimacy of the trial. what sort of political thought does a communicative belief of the trial require? Can trials ever really volume to greater than the imposition of nation strength at the defendant? What political position may well trials play in conflicts that needs to deal now not easily with problems with person accountability, yet with broader collective wrongs, together with wrongs perpetrated by way of, or within the identify of, the kingdom? those concerns are addressed through the essays during this quantity, which arose from workshops held in 2004. this is often the second one of 3 deliberate volumes to be produced via the Trial on Trial venture, which goals to supply an enough normative account of the legal trial and its right function in a democratic polity. the 1st quantity is The Trial on Trial: quantity 1 - fact and Due strategy - ISBN 1841134422.
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Additional resources for The Trial on Trial: Judgement And Calling to Account II
C) Duff et al vol 2 Ch2 17/3/06 14:56 Page 31 Trial and ‘Fair Trial’: From Peer to Subject to Citizen 31 defendant as offender and—if the identification takes place—will appeal to the offender to take responsibility. Thus a ‘fair trial’ is about identification and, at the same time, about calling to account. This means that such a trial takes the defendant seriously as an equal and as part of the community of citizens who share jurisdiction. It seems to me that the ideal-type of our ‘fair trial’ is already attuned to these demands.
In the debate between liberals and communitarians fraternity (community) has often been opposed to freedom. If we take individual actions to be mutually constitutive with norms, then both norms and actions are inherently relational. This also means that the freedom to act is bound by the norms that are its condition of possibility as well as its result. Freedom without community therefore has no meaning. Crime, trial and punishment presume community. This, however, leaves the question whether crime must be regarded as an abuse of freedom that legitimises unequal treatment and exclusion from the community of citizens.
18 Without this debate, the eventual punishment will be more open to misinterpretation (on the epistemological level) and will fall prey to arbitrary exercise of the ius puniendi (on the political level). The trial is democracy on a case-by-case basis: holding together the meanings of legal norms in the light of past cases, and in anticipation of future ones. In a complex and large-scale society such as ours, this day-to-day reestablishment of our shared norms is an indispensable counterpoint to democratic legislation.