Hobbes und der Krieg der Staaten (German Edition)
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University of New South Wales Law Journal
While his Honour stated that it was strongly arguable that an Act that retrospectively punished Australian citizens would, on the authority of Kidman , be constitutional,  he also held that the Commonwealth did not have the necessary constitutional power to criminalise behaviour committed by foreigners in foreign countries.
The lapse of time was relevant only to the question of characterisation; there is no support in this judgment for an independent prohibition of retrospectivity in Australian constitutional law based on the separation of powers. The fourth vote in favour of the validity of the Act was that of Toohey J. As will be discussed, his Honour was of the view that, although some retrospective laws were invalid, this law was not of that class.
Although the judgments of Deane and Gaudron JJ do contain certain points of difference, or perhaps certain differences in emphasis, . Their Honours began with the concept of the separation of powers. As they pointed out, it is well settled that, in Australia, only the courts can exercise federal judicial power.
The retrospective law changes this position and makes a finding of guilt inevitable, which shows that the inviolability of judicial power is infringed. This was said to be the case even if the accused insists on a trial to prove his or her innocence and the trial is held in the normal way and according to the normal rules to determine whether the retrospectively declared requirements of the law are fulfilled.
In other words, the legislature exceeds proper bounds by trespassing on judicial functions if it enacts a retrospective law. Every criminal law, retrospective or not, influences to some degree the process of a criminal trial. Otherwise, the legislature would hardly bother to enact them. Rather, the question which is completely missed by Deane and Gaudron JJ is not whether the law affects the process of the Court in some way, but whether it does so in an impermissible way - a way that is truly inconsistent with the separation of powers.
There is no indication that, in this case, the separation of powers had truly been infringed. That is not to say that the boundary is always easy to draw, but this law was quite clearly on the constitutional side of the boundary. Rather, criminal liability depended on whether the person concerned had in fact committed certain acts proscribed by law; determining this issue is the usual function of the criminal courts. Whether the accused was guilty of proscribed acts or not was to be determined, in a substantive as well as a formal sense, by the courts.
The jury determined, in this case, that Mr Polyukhovich was not guilty, thus removing any possible doubt that the courts were free, as they should be under the principle of separation of powers, to determine the guilt or innocence of an accused person in accordance with the law. It may well be that the principle of the separation of powers is the only principle under the Australian Constitution which could possibly be used, however improbably, to justify a decision that retrospective criminal laws are unconstitutional.
But there is a difference between favouring the prohibition of retrospective laws and being able to justify it under accepted principles of Australian constitutional law. It is not good enough just to decide that retrospective criminal laws should be declared unconstitutional and then to cast about for a principle to justify that conclusion. That is not what is generally accepted as judicial process.
Finally, the consequence of the view of Deane and Gaudron JJ would be that, if a person in Australia were truly guilty of war crimes or crimes against humanity, and retrospective laws were the only means of ensuring just punishment, that person would have to go unpunished.
Surely the doctrine of separation of powers, which deals with the relations between the various arms of government, does not require that consequence. And it should be noted, although this article does not concern itself with international law, that Australia might be in breach of its international obligations if it found itself unable to prosecute those who have committed acts that are crimes under international law.
It remains, however, unclear precisely where his Honour would draw the line between permissible and impermissible retrospectivity. In the passage just quoted he mentions the Liyanage doctrine, which is, of course, accepted constitutional law. But his Honour also emphasised the fact that this law punished conduct that was not generally considered acceptable and was already the subject of a criminal penalty, even if not an Australian one, when it was committed.
It may be that he intended to make this the sole criterion of validity, although I do not read his judgment in this sense. It is quite possible that other considerations might save other laws. It is equally possible, however, that his Honour considered Liyanage to be just one example of a retrospective law that unacceptably interfered with judicial power.
Although the matter is far from clear, it seems that, for Toohey J, the boundary between validity and invalidity lies somewhere between the war crimes legislation, that penalised undoubtedly morally abhorrent acts, and Liyanage. It would seem to be necessary to take all relevant aspects of the law into account before a final judgment about the constitutionality of retrospective laws could be made to the satisfaction of Toohey J.
Justice Dawson too referred to the general undesirability of retrospective laws and to the fact that the acts alleged against Mr Polyukhovich were reprehensible when committed. The position in Australia is thus uncertain.
Can German law help us to resolve this uncertainty? Both the history of the German prohibition of retrospectivity and its current application are of assistance in this respect. A constitutional prohibition of retrospective criminal laws appeared in art of the Weimar Constitution of 11 August Article deviated, for no discernible reason, from the wording of the Criminal Code of Admittedly, the prohibition on retrospective laws was never formally repealed.
But even before the related prohibition on the creation of offences by analogy was repealed in , . It remained as a facade until the bitter end of Nazism in , but was constantly overridden by the legislature.
THE ENCYCLOPÆDIA BRITANNICA
The first instance occurred shortly after the Reichstag fire of March , when the death penalty was retrospectively reintroduced for arson, high treason and other offences; the law known as the lex van der Lubbe after its chief victim, the main defendant in the Reichstag trial was enacted on 29 March with retrospective effect to 31 January This law was enacted under the infamous  Enabling Law ,  pushed through the Reichstag on 24 March , which enabled the government to enact laws by decree, even laws overriding the Constitution in most respects. But in any case, the Supreme Court the Reichsgericht agreed with the minority opinion among scholars, according to which the word Strafbarkeit in art did not protect from retrospective increases in penalty.
Van der Lubbe was accordingly beheaded after being found guilty by the Reichsgericht of burning down the Reichstag. The Reichsgesetzblatt or Reich Government Gazette contains numerous other examples of retrospectivity, and not just in relation to the level of penalty. The very last Nazi criminal law, the Ordinance on the Criminal Law of the Home Guard , enacted on 24 February , was expressed to have come into force on 18 October German experience under the Nazis may be summarised, and a long list of retrospective criminal laws avoided, by saying that retrospective criminal laws were not exceptional, but part of everyday life in the Third Reich.
After the end of the War, the Allies forbade those few native legislative bodies that had survived the general collapse as well as those that they created to legislate retrospectively. At the same time, the Allies enacted retrospective laws for the punishment of war criminals - the most famous example is Law No 10 of the Allied Control Council.
It is, at all events, clear that the Allies were exercising supreme sovereignty in relation to Germany  and could therefore override any provision of German law including, to the extent that it still existed,  the Weimar Constitution in general and art in particular. There are no difficulties in determining why the prohibition of retrospective criminal laws, quoted at the start of this article, was made part of the Constitution in It was, of course, a reaction to the massive abuse of retrospective legislation during the Third Reich.
Those who drafted the Basic Law were of course aware of the need to avoid the many defects of the Weimar Constitution which had led to its collapse. However, the courts have turned semantic ambiguity into legal clarity and it is now accepted, not least because of the history of the prohibition in the s, that art II prohibits retrospective increases in penalty as well as the retrospective creation of offences.
It may or may not be apparent from the text of art II that it includes more than a prohibition of retrospective laws. These three additional norms do not just appear in the same paragraph of the Basic Law ; they are also substantively related to each other and to the prohibition on retrospective criminal laws. The prohibition on non-statutory offences, which does not rule out the creation of non-statutory defences operating in favour of the accused, would clearly be incompatible with the use of analogy to create offences in the manner with which we are familiar in the common law world, .
Dr Bernhard Moltmann
Needless to say, the prohibition on non-statutory offences also rules out the recognition of common law offences as distinct from offences contained in a criminal code. Analogy must, by its nature, have some retrospective effect, as it occurs in cases that come before a court and therefore with facts that must already have occurred. The specificity clause demands that laws should have a certain degree of precision. Obviously, complete precision is unattainable, but there should not be any need for the retrospective drawing of analogies, and the elements of an offence should be clearly stated in the text of the law.
Of course, the prohibition of retrospective laws is not merely the servant of other constitutional principles.
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It has its own substantive role in the system. But it should be seen in the context in which it appears in the German system, as part of an interconnecting set of rules designed to ensure the certainty of the criminal law and its control by the democratically elected legislature in a way that is not entirely appropriate in jurisdictions where common law offences exist.
For the sake of completeness it is necessary to mention that in Germany there is a prohibition of retrospective civil as well as criminal laws, to which there are several exceptions which it is not necessary to detail here. It is derived from principles that have no direct equivalent in Australian constitutional law, and, as discussed above, there is no suggestion that Australian law contains such a principle.
Herfried Münkler - Wikipedia
We have seen that one of the most urgent tasks in re-establishing German criminal jurisprudence after the nightmare of Nazism was the re-introduction of the rule against retrospectivity. At the same time, however, it was necessary to punish war criminals and those who had committed the horrific crimes against humanity perpetrated by the Nazi regime. In other countries, this need to ensure the punishment of war criminals led to the introduction of exceptions to the principle against retrospectivity along the lines of art 15 II of the International Covenant on Civil and Political Rights.
The Weimar Constitution had contained the rule, but no exception; and so it was with art II. Indeed, one of the chief criminals, hanged at Nuremberg, justified the retrospective laws enacted under his regime in a similar way - and by an appeal to Jewish history:. But this eloquent justification for the retrospective punishment of the most evil acts has not remained bereft of support by other, less objectionable jurists.
The courts recognise, in other words, an unwritten exception to the general prohibition of retrospectivity. There is, as the courts used to say fairly frequently in the early years after the War, the natural law, which the state cannot repeal. Doing substantive justice is, after all, also a goal of the rule of law, which the prohibition of retrospectivity is meant to serve. As discussed above, the Allies, who were not subject to art II either because it did not exist until after they legislated or because it applies only to German legislative bodies , enacted, in the interests of substantive justice, some retrospective criminal laws to deal with crimes against humanity and war crimes.
That was how the Nuremberg trials could take place, for example, to the extent that they required a retrospective application of law. Although a scholarly consensus on the precise rationale for these laws has never been reached, this would seem to be a question of secondary importance given the clear need for them and the immense amount of evil there was to punish. The result is the same, and, in relation to the Nazi era, uncontroversial.
This has generally not occurred. Although objectionable Nazi laws have of course been repealed, I am not aware that this has been expressed to occur retrospectively, and the courts have not implied any such intention either. But the fact that any such repeal, express or implied, would have to occur retrospectively means that, as far as the topic dealt with here is concerned, the difference between these two camps is considerably reduced: either natural law is taken to have invalidated the statutes when enacted, although that was of course not something that in practice could be enforced or even necessarily known at the time, but can be enforced and appreciated only in hindsight; or alternatively, the statutes must be invalidated retrospectively by a positive law.
In either case there is a clear element of retrospectivity in what the courts do. The reason is simple: although East Germany was a state not based on the rule of law as that term is generally understood,  it was not responsible for anywhere near the same enormities as the Nazi regime. It is not necessary to describe here how the criminal law of the Federal Republic has been technically adapted so that it can apply in eastern Germany to crimes committed before reunification.
As discussed above, the German legal system is now faced with prosecutions under domestic law of those who did the shooting at the Berlin Wall and the inner-German border. Many were young conscripts with little choice but to serve their turn of border duty, . All these defendants claim that the practice of the East German state or various of its laws justified the acts that they did, and that this amounts to a defence in law. For if they do not, there is no need to determine the precise scope of East German practice or law; it has to be disregarded as a grave offence to human rights.