Suchergebnisse

Defence date: 8 June 1982 ; Supervisor: Mauro Cappelletti ; First made available online on 2 September 2013.

Criminal law has an inherent expressive and communitarian dimension, expressing the common values and norms of the political community. Drawing on the theory of Antony Duff, this article explores the extent to which the EU's actions in the area of substantive criminal law can be said to express common European values by identifying actions deemed wrongful vis-à-vis the Union as a whole. The Union is limited in its capacity to express conceptions of wrong-doing through its substantive criminal law by the limited nature of its competences, its functional character and its multilevel structure. However, it does enjoy an expressive quality in two broad areas; first, the identification of European public goods, harm to which constitutes a wrong to the Union and second, common European public values. Also, substantive EU criminal law can support transnational criminal law processes, interacting with national criminal law and giving rise to the identification of certain shared wrongs amongst Member States. Thus, while certainly limited, EU criminal law does fulfil a role in the identification of wrongful behaviour and the expression of common values.

In the scholarly literature, we can find three different concepts that have essentially the same meaning, but which are not identical to each other. These are the English rule of law, the German Rechtsstaat and the French état de droit. Each concept is derived from specific historical, social and political context. The aim of this article is to examine the meaning and significance of the rule of law in a national and supranational context, while looking for similarities and differences. The main research problem concerns the question of how the rule of law should be understood in a non-state, i.e. a supranational context. Bearing in mind that in the case of the European Union we are dealing with a non-state context, and despite the fact that the closest concept of understanding of the rule of law applied in the European Union is the German Rechtsstaat, the author adopts the hypothesis that the most accurate narrative in the present context is the English understanding of the rule of law. The considerations and findings are to lead to a better understanding of this concept in the non-state (supranational) context, because compliance with the law, including the rule of law, by all entities (public and private, national, and European) is essential to the further existence of the European Union. The study is analytical, comparative, and explanatory.

The increasing resonance of international humanitarian law in the domestic sphere, primarily through the implementation of treaty obligations in domestic legislation, gives international law a relevance to local communities never before seen. Whilst the effects of this phenomenon defy generalisation in Australia today, it is possible to discern a range of responses from indignation at the overarching reach of international law to the domestic space, to vindication of historical claims of mistreatment at the hands of colonial oppressors.Recent shifts in Commonwealth legislation and policy have sparked debate on whether the federal government has breached its international obligations. Notwithstanding the importance and currency of this question, and irrespective of one's views on it, there is a broader issue raised by the question, which is more amenable to academic investigation. It may be framed in the following terms. How can, and should, the ideal of democratic control of legislation and the legal system generally be reconciled with the development of an autonomous international legal system? The article will approach this question from a comparative perspective, drawing on legal and political developments in the EU and Australia. It seeks to justify a comparative analysis on the basis that Australia (an established federation) and the EU (an emerging federation) are both dealing with issues of reception of supranational law within domestic systems. It concludes that there is a need to reaffirm the legitimacy of supranational law both as an expression of national sovereignty and as an outcome of rational discourse — i.e. it has come into being with right process and is considered binding.