Criminal law, the victim and community: The shades of ‘we’ and the conceptual involvement of community in contemporary criminal law theory

The article addresses the argument, put forward by Lernestedt, that the proprietor of the ‘criminal-law conflict’ is the community (or the community and the offender) and discusses his proposed theoretical model of criminal law trial. I raise questions regarding the legitimacy of such a model, focusing on four counts. Firstly, I assert that his assumptions about the state the individual and the old/new versions of criminal law theory are society-dependent. Secondly, I address some problems with the concept of community and particularly with the proposed conception of community, which seems to mostly exclude the offender. Thirdly, I question the need for (or added value of) such a proposed conceptual involvement of the community as an actor in the criminal law process and theory. Lastly, some potential problems with the idea of the victim as a mere “representative of us” are mentioned, including the possibly undesirable demands and limitations on the victim’s agency and issues of respect for the victim’s individuality.

Journal/Publisher: Criminal Law and Philosophy, Volume 8, Issue 1

Publication type: Article

Number of pages/Page range: 205-215

Language/s (content): English

Date of publication: 02-01-14

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Personal data

Full name Nina PERSAK

Current occupation Member

University/Institution Ghent University

Address Universiteitstraat 4

Postal code 9000, Gent

Telephone 0032 9 264 91 92

Fax 0032 9 264 69 88

Email nina.persak@ugent.be