Projects / Programmes
Theory of Punishment and Democratic Culture in Slovenia
| Code |
Science |
Field |
Subfield |
| 5.05.00 |
Social sciences |
Law |
|
| Code |
Science |
Field |
| S115 |
Social sciences |
Philosophy and theory of law |
| Code |
Science |
Field |
| 5.05 |
Social Sciences |
Law |
Theories of punishment, democratic culture, human rights, philosophy of law
Researchers (11)
Organisations (4)
Abstract
The project is dedicated to the analysis, understanding and confronting with the defects in the Slovenian democratic culture, which are manifested on the field of criminal policy. In the first place, the project approaches the genealogy of disorientation on this horizon. It finds it in the spiritual dynamics of the entire post-war Europe, marked by the competition between two pretenders for the superior social order, and in the geographical position of Slovenia, resulting in its exceptional competitiveness in relation to the West. And precisely in the case of criminal policy, the opportunity offered to Slovenia to create a system that would appear superior not only by the socialist criteria, but also by the advanced standards that were developed in the West.
However, the fast introduction of increasingly milder penalties, resocializations, etc. was possible only because the criminal system was excluded from social reality. A totalitarian state sanctioned a large part of the crime with a direct police repression and secret police's operations. After 1991, Slovenia has not carried out any democratization in this field, but fully insisted on the same concepts, which were initiated exactly fifty years ago by a completely dogmatic, superficial way. Their theoretical deficiency could be demonstrated by the fact, that they can be too easily transposed into a completely opposite frame (ex falso quodlibet): in socialism, for example, retributive punishment would not be necessary, while in a liberal democracy it would not be moral.
The project thematises the defect in crime policy through three fictive discrepancies. The first discrepancy concerns 1) the dogmatic rejection of the retributive theories as “revenge”. This project demonstrates, on multiple levels, that retributivism is i) clearly separated from revenge, and that ii) it is theoretically compatible with the utilitarian approaches. The second discrepancy assumes that 2) the law under the conditions of liberal democracy is merely a repression in the service of dominant forces. The project demonstrates that the sanction i) is an essential component of any legal rule, a fact that is also underpinned by ii) different legal theories. The third discrepancy presumes 3) the conflict between human rights and punishment. Human rights certainly have an exceptional role in limiting state's arbitrariness. But it cannot be overlooked that only the state has capacity and authority for the protection of the individual's human rights (its “horizontal effect”).
The project will prove that these three presumed discrepancies in a democratic environment do not exist. To carry out this argument in a convincing way, it is necessary to consider a spiritual situation of Europe in all its complexity. This situation is partly based on its tradition, so we will first focus on 1) classical theories of law and state and of criminal justice. Although the reference to classical theories is based also on modern interpretations, it is not possible to embrace recent spiritual situation on this way. There are two shifts that need to be taken into consideration; the first one summarizes the term "postmodernism", the other “globalization”. It is therefore essential to 2) reflect about the limits of the classical approach and to introduce the interest for i) non-western concepts of democracy, and ii) for a post-national situation in which the state is no longer based on the concept of a nation. Only on this base can we adequately explain the legitimacy of social rules and thus the legitimacy of their coercivity.
Facit: the aim of the project is to affirm a democratic culture through the legitimation of penalty. The punishment is a phenomenon that at first glance represents a counterpoint to a modern state, whose outmost concerns are the welfare, security and affirmation of the individuals. If we prove the legitimacy of democratic culture on the level of penalty, it is consequently proved through its entire organi
Significance for science
The relevance of the project for the development of science can be divided into the following four points:
1) Analysis of the phenomenology of uncomplete reception of democratic order. Every social regulation has two aspects, a formal and a material one. Although these are co-responding components, their reception follows to different principles. The transfer that takes place only on formal level produces unforeseen consequences. On that ground, beside the formal reception of democratic principles, there is necessary to demonstrate in every area of society that the reception of democratic principles without a simultaneous reception of a democratic sentiment unavoidably leads to the anomalies.
2) The attitude to punishment as the touchstone of the maturity of the legal culture. For no state in history was characteristic such an enormous concern for the welfare of its citizens, as it is for a modern liberal democracy. However, it still has (criminal) statutes that demand the intervention in the most vital individual’s interests. Thus, the punishment has never represented such an immense contrast to the idea of the state as the "service" and "ally" of an individual. Consequently, the task of its justification has never been so difficult. It is highly important to convincingly prove that a punishment is not a heterogenous element within humanitarian dispositive of modern democracy; it is its essential part.
3) Legitimacy and sanctioning of social rules in postmodernism and globalization. The resolution of disorientation in the field of crime policy could not be achieved by simple recurrence to the concepts developed in the 17th, 18th and 19th centuries. The spiritual situation of Europe today is defined by at least two major shifts (postmodernism and globalisation). On that ground the interest for the communication of Western democracy with non-Western traditions, and to the post-national conception of the state is necessary. Only by taking these shifts into account, the recurring to the classic punishment-theories will not degenerate into an empty academic anachronism, and will be fruitful enough to face the problem on which we are founding this project.
4) Accomplishment of a democratic legal culture. As the main outcome of this research is considered a contribution to accomplishment of democratization. This requires an insight in the fact that the value-foundation of a community cannot be imagined without effective social rules. For this task are suitable only the legal rules that are divided into a disposition and a sanction. The legal rule without a sanction is lex imperfecta. If the delicts are not sanctioned (or only in a disproportionately mild form), this is not an expression of the society's humanity, on contrary, it puts into a question the protection of the fundamental rights of the individual, as enforced by Constitution. Only by this insight the alarmingly low level of trust in the law in Slovenia can be improved.
Significance for the country
The relevance of the project for the development of science can be divided into the following four points:
1) Analysis of the phenomenology of uncomplete reception of democratic order. Every social regulation has two aspects, a formal and a material one. Although these are co-responding components, their reception follows to different principles. The transfer that takes place only on formal level produces unforeseen consequences. On that ground, beside the formal reception of democratic principles, there is necessary to demonstrate in every area of society that the reception of democratic principles without a simultaneous reception of a democratic sentiment unavoidably leads to the anomalies.
2) The attitude to punishment as the touchstone of the maturity of the legal culture. For no state in history was characteristic such an enormous concern for the welfare of its citizens, as it is for a modern liberal democracy. However, it still has (criminal) statutes that demand the intervention in the most vital individual’s interests. Thus, the punishment has never represented such an immense contrast to the idea of the state as the "service" and "ally" of an individual. Consequently, the task of its justification has never been so difficult. It is highly important to convincingly prove that a punishment is not a heterogenous element within humanitarian dispositive of modern democracy; it is its essential part.
3) Legitimacy and sanctioning of social rules in postmodernism and globalization. The resolution of disorientation in the field of crime policy could not be achieved by simple recurrence to the concepts developed in the 17th, 18th and 19th centuries. The spiritual situation of Europe today is defined by at least two major shifts (postmodernism and globalisation). On that ground the interest for the communication of Western democracy with non-Western traditions, and to the post-national conception of the state is necessary. Only by taking these shifts into account, the recurring to the classic punishment-theories will not degenerate into an empty academic anachronism, and will be fruitful enough to face the problem on which we are founding this project.
4) Accomplishment of a democratic legal culture. As the main outcome of this research is considered a contribution to accomplishment of democratization. This requires an insight in the fact that the value-foundation of a community cannot be imagined without effective social rules. For this task are suitable only the legal rules that are divided into a disposition and a sanction. The legal rule without a sanction is lex imperfecta. If the delicts are not sanctioned (or only in a disproportionately mild form), this is not an expression of the society's humanity, on contrary, it puts into a question the protection of the fundamental rights of the individual, as enforced by Constitution. Only by this insight the alarmingly low level of trust in the law in Slovenia can be improved.
