Moderation in criminal law

criminal law

In an analysis of early American law, Professor Grant Gilmore points to the remote likelihood that a struggle for national liberation would create a climate conducive to the establishment of a stable legal system.

However, he explains in these terms the spirit that reigned at the end of the eighteenth century in the United States:

With the triumph of the Revolution and the establishment of a centralized federal government, the country was ready to start afresh, to rethink political institutions, to define the role that government would play in the evolution of society, to create the laws that would govern the federal republic and its constituent states. It is quite clear that the men who ruled the country from the 1770s or 1780s through the 1820s and 1830s understood their privileged and historically unprecedented position: indeed, it is not given to each generation to make a new start in a vigorous, educated and advanced society which is already in full social and economic development, aware of its immense possibilities for[2] .

The same could be said of European societies which, since 1989, have undertaken the heavy task of rebuilding their state apparatus. These societies are aware Moderation in criminal law  of the fact that history offers them the chance to start from scratch. The decisions taken during the first years of this reconstruction will have lasting effects, and wisdom therefore demands that we act with moderation, especially in the creation and application of criminal law.

The benefits of moderation

Moderation is often considered a personal quality: it is associated with other values, such as tolerance, patience, compassion, personal discipline and the spirit of sacrifice. Its antithesis is found among the defects or vices, among others hardness of heart, anger, intolerance, weakness of character, selfishness, the spirit of domination and unjustified violence. There is no way to define moderation as a personal quality, but let’s say that, in a society, any definition must include respect for the integrity of others and their well-being. It implies for everyone the ability not to give in to their impulses and to subordinate their personal preferences to the needs of others.

It is even more difficult to define moderation as a public quality, that is, as a value which supports the institutions of civil society and which permeates the conduct of government in general, and the administration of justice in particular. . It is quite obvious that moderation, in this public sense as well as in its private context, has a variable importance according to each society and even between the different members of a society. There is no objective method to measure the degree to which institutions and government reflect, among other things, respect for the integrity of individuals or tolerance of differences and disagreements between them. At the same time, the

Moderation is essentially, like good judgment or politeness, a virtue which cannot be codified, even if some of its aspects can be expressed by means of rules, principles or other conventions governing everyone’s conduct. To a large extent, the most important characteristics of moderation must always remain unspoken, because if it becomes necessary to express them in the form of rules, it is a sign that moderation is absent. Of course, not all positive precepts reflect the need for moderation: the proliferation of rules may, in some cases, mean nothing more than an unbridled desire for domination on the part of the entity that rules them. enacts, without regard to the legitimate use of social power and integrity of those who are subject to it. The teacher Gilmore expresses a similar idea thus:

The law reflects but in no way determines the moral fiber of a society. The values ​​of a reasonably just society will translate into reasonably just laws. The fairer the society, the fewer laws it will have. In paradise, there will be no law, and the lion will rub shoulders with the lamb. In contrast, the values ​​of an unjust society will result in unjust laws. The less the society is just, the more laws it will have. In hell, there will be only laws and the procedure will be rigorously respected [3] .

At the lowest level of hell, it is likely that even the procedure will no longer be observed. The deep meaning of this extract nevertheless remains unequivocal: the moral sense of a society will give rise, in part, to the use of moderation in the enactment of laws.

For what? First of all because a plethora of legislative texts serves only to restrict the freedom and integrity of individuals and then becomes pernicious or bad. Second, attacks on personal liberty and integrity can only engender contempt for the law, for those who apply it and for the institutions through which they act. Third, it is wrong to believe that the multiplication of legislative texts makes it possible to create a better society, even if they aim at the most noble objectives. In short, it is not laws that can improve a society, but moderation in the exercise of judgment.

Moderation in the application of criminal law

In law, moderation finds its most common, and also most vague, expression in the principle of the rule of law. Although this principle is never precisely defined, it can designate a set of restrictions imposed by the rules of law on the exercise of power by all State bodies. Moderation in the creation and application of criminal law can be perceived in two ways, and we discuss them in the following lines. The first deals with moderation in the positive law of a state, while the second, more nebulous though more important, deals with moderation in the creation of criminal law.

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