Professionals serve long terms of office and a feeling of routine may develop. A sense of insiders and outsiders appears. On the other hand, the coordinate notion is characterised by hostility to more formal models of decision making, and this results in a more individualised approach, thus maintaining a personal feel. Technical approaches to decision making are unwelcome.
Power is vested in lay people with a spirit of inclusivity. Generally, sentencing bodies are independent bodies set up pursuant to statute with a mix of judicial and non-judicial lay members. Some have heavy judicial input, while others have no judicial input at all. Members come from diverse backgrounds including academics, experts in law enforcement, experts in criminal law such as prosecutors and defence counsel, experts in juvenile justice, those with experience of victims of crime and experts in the prison system.
Sentencing bodies have many different functions relating to sentencing matters and can include promulgating guidelines, monitoring sentencing, accessing costs, carrying out research, educating the public on sentencing and giving sentencing advice to the courts. The use of sentencing guidelines requires that sentencing decisions are reached in a technical way with narrow choices. A particular outcome is expected if certain facts are present.
However, sentencing bodies have not emerged in hierarchical civil law jurisdictions, and instead have developed in coordinate common law jurisdictions and are therefore a common law phenomenon. Part two of this article will discuss the characteristics of the common law and civil law traditions. We will see that the civil law tradition is more mechanical than the common law tradition.
Part five will make some concluding remarks. Sentencing bodies are a common law phenomenon and they do not appear in the civil law tradition. Generally, the substantive criminal law does not differ greatly between the two, with the same kind of deviant behaviour considered criminal. They both have evolved to do much the same thing.
When we look at the two traditions there are many differences which may help explain why sentencing bodies did not emerge in the civil law tradition. Many characteristics of the civil law tradition suggest that it is more rigid than the common law, with some arguing that there is more emphasis on form rather than substance. The civil law tradition is highly systematic, with legal scholars 12 and legal science 13 playing a more important role.
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Principles derived from scientific study of legal data are made to fit together in a very intricate way. As principles are discovered, they must be fully integrated into the system.
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If they are not, then either the system must be modified to accommodate them, or they must be modified to fit the system. Civil law jurisdictions are described as closed systems, in which any kind of question must, at least in theory, be resolved by an interpretation of an existing rule of law. On the other hand, the common law is described as an open system where one begins with a rule of law already enunciated and discovers the legal rule, perhaps a new legal rule, which must be applied in the instant case.
With civil law, there is a different ideology regarding legislation, where it is considered a complete set of law capable of answering all legal scenarios. Certainty is supreme in the civil law tradition, and legislation must be complete, coherent and clear 21 rather than take the form of broad laws that judges could apply as they see fit. In the civil law tradition, the application of the law is as automatic as possible. His job is fundamentally rigid, mechanical, and uncreative. Again, this automatic rigid application of the law is reflected in sentencing bodies and their associated guidelines.
In a civil law tradition, the criminal procedure itself appears to have a more rigid character than the common law and operates in a piecemeal fashion 27 or instalment style with heavy reliance on the written record. After a given session, new points arise which are the subject of another session, and so on, until the issue seems thoroughly clear. A final session is then devoted to bringing all the strands together and reaching a decision. The primary characteristic of any sentencing body is that it offers a degree of rigidity to sentencing considerations through various mechanisms, resulting in the structuring of judicial discretion.
For such a body to be superimposed onto an existing legal system, one must take into account the structure of that existing system. He suggested a framework which would facilitate the study of linkages between authority and the legal process.
He contends that there are connections between these goals and the structure of authority which are relevant to the choice of many procedural arrangements. In the following paragraphs we will take a closer look at the characteristics of each of these dimensions. However, for our purposes, the first dimension, whose characteristics are more physically observable, is the most important, and this is the primary focus. This first structure is characterised by a professional corps of officials who make decisions according to technical standards not easily accessible to laymen.
Professionals carve a sphere of practice which they regard as their own special province. Over time, they develop a sense of identity with similarly situated individuals, so the lines become rigid between insiders and outsiders. If outside participation is imposed upon such officials it is viewed as meddling. Long terms of office create the space for making tasks appear routine. As matters become routine, calls for individualized justice decrease.
Choices become narrow, and emotional disengagement is possible. As a result, the decision maker can make decisions in his professional capacity that he would never make in his private capacity. The ideal is also characterised by using technical standards for decision making. Here, decision makers are expected to make a particular decision when specific facts are found. The mechanisms used in arriving at decisions are framed in language which forecloses many theoretically possible paths of interpretation.
This ideal is characterised by power vested in lay people who perform their functions for a limited time. Where the apparatus of authority is for a limited time, there is little opportunity for a spirit of exclusivity to develop. Routine has little chance to develop, but if terms of office are longer, some hardening of ways may set in.
Decisions taken have more of a personal feel. He was named a special advisor to the prime minister Ivo Sanader in , and a Croatian agent before the International Court of Justice, where he led a team of Croatian and British lawyers in the case Croatia vs. He participated in various scientific conferences and congresses, and was a visiting professor on many law schools around the world. From Wikipedia, the free encyclopedia. Guilford Funeral Home.
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Values and Institutions in Economic Analysis Bohnet, Iris, and Robert Cooter. Bond, Michael Harris, et al.
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