135-414: In jurisprudence , double jeopardy is a procedural defence (primarily in common law jurisdictions) that prevents an accused person from being tried again on the same (or similar) charges following an acquittal or conviction and in rare cases prosecutorial and/or judge misconduct in the same jurisdiction . Double jeopardy is a common concept in criminal law – in civil law , a similar concept
270-408: A de novo review of both legal and factual findings. In doing so, it held that the scope of an appeal may not extend to challenging findings of fact where no legal error has been made. At this point, the court reasoned, the process ceases to be an appeal and instead becomes a new trial disguised as one. A notable example cited by critics of Canada's appeal system is the case of Guy Paul Morin , who
405-552: A Court of competent jurisdiction and acquitted by such court cannot be tried again for the same offence or for any other offence based on similar facts. The scope of section 403 is restricted to criminal proceedings and not to civil proceedings and departmental inquiries. This principle is incorporated into the Constitution of the Republic of Serbia and further elaborated in its Criminal Procedure Act. The Bill of Rights in
540-444: A conviction of a felony by themselves or in combination with earlier evidence. In Germany, a felony is defined by § 12 (1) StGB as a crime that has a minimum of one year of imprisonment. A partial protection against double jeopardy is a Fundamental Right guaranteed under Article 20 (2) of the Constitution of India , which states "No person shall be prosecuted and punished for the same offence more than once". This provision enshrines
675-469: A crime already judged is impossible even if incriminating evidence has been found. However, a person who has been convicted may request another trial on the grounds of new exculpating evidence through a procedure known as révision . French law allows the prosecution to appeal an acquittal. The Basic Law ( Grundgesetz ) for the Federal Republic of Germany protects against double jeopardy if
810-411: A dominant social group. Perjury Perjury (also known as foreswearing ) is the intentional act of swearing a false oath or falsifying an affirmation to tell the truth, whether spoken or in writing, concerning matters material to an official proceeding. Like most other crimes in the common law system, to be convicted of perjury one must have had the intention ( mens rea ) to commit
945-409: A final verdict is pronounced. A verdict is final if nobody appeals against it. Nobody shall be punished multiple times for the same crime on the basis of general criminal law. However, each trial party can appeal against a verdict in the first instance. The prosecution or the defendants can appeal against a judgement if they disagree with it. In this case, the trial starts again in the second instance,
1080-600: A home in American legal constructs. As such, the main tenets of perjury, including mens rea , a lawful oath, occurring during a judicial proceeding, a false testimony have remained necessary pieces of perjury's definition in the United States. Perjury's current position in the American legal system takes the form of state and federal statutes. Most notably, the United States Code prohibits perjury, which
1215-410: A law, especially when the "particular" law of one's own city was adverse to the case being made, not that there actually was such a law. Aristotle, moreover, considered certain candidates for a universally valid, natural law to be wrong. Aristotle's theoretical paternity of the natural law tradition is consequently disputed. Thomas Aquinas is the foremost classical proponent of natural theology , and
1350-688: A maximum sentence of not less than 3 years' imprisonment, the perjurer may be imprisoned for up to 14 years. Perjury is a statutory offence in England and Wales . It is created by section 1(1) of the Perjury Act 1911 . Section 1 of that Act reads: (1) If any person lawfully sworn as a witness or as an interpreter in a judicial proceeding wilfully makes a statement material in that proceeding, which he knows to be false or does not believe to be true, he shall be guilty of perjury, and shall, on conviction thereof on indictment, be liable to penal servitude for
1485-512: A minimum sentence of 20 years or more are now possible even if the original trial preceded the 2006 reform. On 17 October 2006, the New South Wales Parliament passed legislation abolishing the rule against double jeopardy in cases where: On 30 July 2008, South Australia also introduced legislation to scrap parts of its double jeopardy law, legalising retrials for serious offences with "fresh and compelling" evidence, or if
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#17327879512941620-540: A moral virtue derived as the mean between opposing vices, just like every other virtue he describes. His longest discussion of his theory of justice occurs in Nicomachean Ethics and begins by asking what sort of mean a just act is. He argues that the term "justice" actually refers to two different but related ideas: general justice and particular justice. When a person's actions toward others are completely virtuous in all matters, Aristotle calls them "just" in
1755-406: A new theory of jurisprudence that has developed since the 1970s. The theory can generally be traced to American legal realism and is considered "the first movement in legal theory and legal scholarship in the United States to have espoused a committed Left political stance and perspective". It holds that the law is largely contradictory, and can be best analyzed as an expression of the policy goals of
1890-481: A norm. Joseph Raz's theory of legal positivism argues against the incorporation of moral values to explain law's validity. In Raz's 1979 book The Authority of Law , he criticised what he called the "weak social thesis" to explain law. He formulates the weak social thesis as "(a) Sometimes the identification of some laws turn on moral arguments, but also with, (b) In all legal systems the identification of some law turns on moral argument." Raz argues that law's authority
2025-460: A person who swears willfully, absolutely, and falsely, in a matter material to the issue or point in question". The punishment for perjury under the common law has varied from death to banishment and has included such grotesque penalties as severing the tongue of the perjurer. The definitional structure of perjury provides an important framework for legal proceedings, as the component parts of this definition have permeated jurisdictional lines, finding
2160-428: A pivotal book on Hart (second edition published in 2008), which further refined and offered some important criticisms that led MacCormick to develop his own theory (the best example of which is his Institutions of Law , 2007). Other important critiques include those of Ronald Dworkin , John Finnis, and Joseph Raz . In recent years, debates on the nature of law have become increasingly fine-grained. One important debate
2295-676: A preliminary matter whether the plea is substantiated; if it is, the projected trial will be prevented from proceeding. In some countries, certain exemptions are permitted. In Scotland, a new trial can be initiated if, for example, the acquitted has made a credible admission of guilt. Part of English law for over 800 years, it was partially abolished in England, Wales and Northern Ireland by the Criminal Justice Act 2003 where, following demand for change, serious offences may be re-tried following an acquittal if new and compelling evidence
2430-559: A relevant convention court under the European Patent Convention as it applies to a judicial proceeding in a tribunal of a foreign state. A statement made on oath by a witness outside the United Kingdom and given in evidence through a live television link by virtue of section 32 of the Criminal Justice Act 1988 must be treated for the purposes of section 1 as having been made in the proceedings in which it
2565-581: A sovereign, to whom people have a habit of obedience". H. L. A. Hart criticized Austin and Bentham's early legal positivism because the command theory failed to account for individual's compliance with the law. Hans Kelsen is considered one of the preeminent jurists of the 20th century and has been highly influential in Europe and Latin America, although less so in common law countries. His Pure Theory of Law describes law as "binding norms", while at
2700-708: A statement referred to in either of those subsections that is made by a person who is not specially permitted, authorized or required by law to make that statement. As to corroboration, see section 133. Everyone who commits perjury is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. A person who, before the Court of Justice of the European Union , swears anything which he knows to be false or does not believe to be true is, whatever his nationality, guilty of perjury. Proceedings for this offence may be taken in any place in
2835-422: A system of law, or to give it our respect. Thus, the law must have a morality that goes beyond the societal rules under which laws are made. Sophisticated positivist and natural law theories sometimes resemble each other and may have certain points in common. Identifying a particular theorist as a positivist or a natural law theorist sometimes involves matters of emphasis and degree, and the particular influences on
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#17327879512942970-405: A term not exceeding seven years, or to imprisonment ... for a term not exceeding two years, or to a fine or to both such penal servitude or imprisonment and fine. (2) The expression "judicial proceeding" includes a proceeding before any court, tribunal, or person having by law power to hear, receive, and examine evidence on oath. (3) Where a statement made for the purposes of a judicial proceeding
3105-532: A theory of ius gentium (law of nations), and thus is an important figure in the transition to modernity. He extrapolated his ideas of legitimate sovereign power to international affairs, concluding that such affairs ought to be determined by forms respecting of the rights of all and that the common good of the world should take precedence before the good of any single state. This meant that relations between states ought to pass from being justified by force to being justified by law and justice. Some scholars have upset
3240-417: Is the case. So analysing and clarifying the way the world is must be treated as a strictly separate question from normative and evaluative questions of what ought to be done. The most important questions of analytic jurisprudence are: "What are laws?"; "What is the law?"; "What is the relationship between law and power/sociology?"; and "What is the relationship between law and morality?" Legal positivism
3375-529: Is "fresh and compelling" evidence. In Victoria on 21 December 2011, legislation was passed allowing new trials where there is "fresh and compelling DNA evidence, where the person acquitted subsequently admits to the crime, or where it becomes clear that key witnesses have given false evidence". However, retrial applications could only be made for serious offences such as murder, manslaughter, arson causing death, serious drug offences and aggravated forms of rape and armed robbery. In Queensland on 18 October 2007,
3510-411: Is a necessary truth that there are vices that a legal system cannot possibly have (for example, it cannot commit rape or murder). Legal realism is the view that a theory of law should be descriptive and account for the reasons why judges decide cases as they do. Legal realism had some affinities with the sociology of law and sociological jurisprudence. The essential tenet of legal realism is that all law
3645-520: Is also concerned with normative theories of law. "Normative jurisprudence involves normative, evaluative, and otherwise prescriptive questions about the law." The English word is derived from the Latin, iurisprudentia . Iuris is the genitive form of ius meaning law, and prudentia meaning prudence (also: discretion, foresight, forethought, circumspection). It refers to the exercise of good judgment, common sense, and caution, especially in
3780-416: Is based on "first principles": ... this is the first precept of the law, that good is to be done and promoted, and evil is to be avoided. All other precepts of the natural law are based on this ... The desires to live and to procreate are counted by Aquinas among those basic (natural) human values on which all other human values are based. Francisco de Vitoria was perhaps the first to develop
3915-496: Is commonly said that Hobbes's views on human nature were influenced by his times. The English Civil War and the Cromwellian dictatorship had taken place; and, in reacting to that, Hobbes felt that absolute authority vested in a monarch, whose subjects obeyed the law, was the basis of a civilized society. John Austin and Jeremy Bentham were early legal positivists who sought to provide a descriptive account of law that describes
4050-425: Is conceptually distinct from morality. While law might contain morality, the separability thesis states that "it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so." Legal positivists disagree about the extent of the separability thesis. Exclusive legal positivists, notably Joseph Raz , go further than the standard thesis and deny that it
4185-453: Is found, and if the trial is found to be in the public's interest. In some countries, including Canada, Mexico, and the United States, the guarantee against being "twice put in jeopardy" is a constitutional right. In other countries, the protection is afforded by statute . In common law countries, a defendant may enter a peremptory plea of autrefois acquit ('previously acquitted') or autrefois convict ('previously convicted'), with
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4320-485: Is from this cultural movement that Justinian 's Corpus Juris Civilis was born. Modern jurisprudence began in the 18th century and was based on the first principles of natural law , civil law , and the law of nations . Natural law holds that there are rational objective limits to the power of rulers, the foundations of law are accessible through reason, and it is from these laws of nature that human laws gain force. The moral theory of natural law asserts that law
4455-411: Is given in evidence. Section 1 applies in relation to a person acting as an intermediary as it applies in relation to a person lawfully sworn as an interpreter in a judicial proceeding; and for this purpose, where a person acts as an intermediary in any proceeding which is not a judicial proceeding for the purposes of section 1, that proceeding must be taken to be part of the judicial proceeding in which
4590-528: Is identifiable purely through social sources, without reference to moral reasoning. This view he calls "the sources thesis". Raz suggests that any categorisation of rules beyond their role as authority is better left to sociology than to jurisprudence. Some philosophers used to contend that positivism was the theory that held that there was "no necessary connection" between law and morality; but influential contemporary positivists—including Joseph Raz, John Gardner , and Leslie Green —reject that view. Raz claims it
4725-446: Is inherent in nature and constitutive of morality, at least in part, and that an objective moral order, external to human legal systems, underlies natural law. On this view, while legislators can enact and even successfully enforce immoral laws, such laws are legally invalid. The view is captured by the maxim: " an unjust law is no law at all ", where 'unjust' means 'contrary to the natural law.' Natural law theory has medieval origins in
4860-424: Is made by humans and thus should account for reasons besides legal rules that led to a legal decision. There are two separate schools of legal realism: American legal realism and Scandinavian legal realism. American legal realism grew out of the writings of Oliver Wendell Holmes . At the start of Holmes's The Common Law , he claims that "[t]he life of the law has not been logic: it has been experience". This view
4995-679: Is normally itself punishable by execution in countries that retain the death penalty . Perjury is considered a felony in most U.S. states. However, prosecutions for perjury are rare. The rules for perjury also apply when a person has made a statement under penalty of perjury even if the person has not been sworn or affirmed as a witness before an appropriate official. An example is the US income tax return, which, by law, must be signed as true and correct under penalty of perjury (see 26 U.S.C. § 6065 ). Federal tax law provides criminal penalties of up to three years in prison for violation of
5130-519: Is not "comprehensive". The book Archbold says that it appears to be immaterial whether the court before which the statement is made has jurisdiction in the particular cause in which the statement is made, because there is no express requirement in the Act that the court be one of "competent jurisdiction" and because the definition in section 1(2) does not appear to require this by implication either. The actus reus of perjury might be considered to be
5265-417: Is not made before the tribunal itself, but is made on oath before a person authorised by law to administer an oath to the person who makes the statement, and to record or authenticate the statement, it shall, for the purposes of this section, be treated as having been made in a judicial proceeding. (4) A statement made by a person lawfully sworn in England for the purposes of a judicial proceeding— shall, for
5400-414: Is permissible after a final judgement, In the case of an order of summary punishment , which can be issued by the court without a trial for lesser misdemeanours, there is a further exception: A retrial not in favour of the defendant is also permissible if the defendant has been convicted in a final order of summary punishment and new facts or evidence have been brought forward, which establish grounds for
5535-554: Is possible for morality to be a part of law at all. The discretion thesis states that judges create new law when they are given discretion to adjudicate cases where existing law underdetermines the result. Hobbes was a social contractarian and believed that the law had peoples' tacit consent. He believed that society was formed from a state of nature to protect people from the state of war that would exist otherwise. In Leviathan , Hobbes argues that without an ordered society life would be "solitary, poor, nasty, brutish and short." It
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5670-408: Is that of res judicata . The double jeopardy protection in criminal prosecutions bars only an identical prosecution for the same offence; however, a different offence may be charged on identical evidence at a second trial. Res judicata protection is stronger – it precludes any causes of action or claims that arise from a previously litigated subject matter. A variation in common law countries
5805-418: Is the peremptory plea , which may take the specific forms of autrefois acquit ('previously acquitted') or autrefois convict ('previously convicted'). These doctrines appear to have originated in ancient Roman law , in the broader principle non bis in idem ('not twice against the same'). If a double jeopardy issue is raised, evidence will be placed before the court, which will typically rule as
5940-472: Is the dominant theory, although there is a growing number of critics who offer their own interpretations. Historical jurisprudence came to prominence during the debate on the proposed codification of German law . In his book On the Vocation of Our Age for Legislation and Jurisprudence , Friedrich Carl von Savigny argued that Germany did not have a legal language that would support codification because
6075-399: Is usually considered a single historical course of actions the separation of which would seem unnatural". This is true even if new facts come to light that indicate other crimes. The Penal Procedural Code ( Strafprozessordnung ) permits a retrial ( Wiederaufnahmeverfahren ), if it is in favour of the defendant or if the following events have happened: A retrial not in favour of the defendant
6210-420: Is within legal positivism. One school is sometimes called "exclusive legal positivism" and is associated with the view that the legal validity of a norm can never depend on its moral correctness. A second school is labeled "inclusive legal positivism", a major proponent of which is Wil Waluchow, and is associated with the view that moral considerations may , but do not necessarily, determine the legal validity of
6345-530: The Nicomachean Ethics (Book IV of the Eudemian Ethics ). Aquinas's influence was such as to affect a number of early translations of these passages, though more recent translations render them more literally. Aristotle's theory of justice is bound up in his idea of the golden mean . Indeed, his treatment of what he calls "political justice" derives from his discussion of "the just" as
6480-604: The Constitution of South Africa forbids a retrial when there has already been an acquittal or a conviction. Every accused person has a right to a fair trial, which includes the right ... not to be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted ... Article 13 of the South Korean constitution provides that no citizen shall be placed in double jeopardy. Double jeopardy has been permitted in England and Wales in certain (exceptional) circumstances since
6615-464: The Criminal Justice Act 2003 . The doctrines of autrefois acquit and autrefois convict persisted as part of the common law from the time of the Norman conquest of England ; they were regarded as essential elements for protection of the subject's liberty and respect for due process of law in that there should be finality of proceedings. There were only three exceptions, all relatively recent, to
6750-552: The Daoists , Confucians , and Legalists all had competing theories of jurisprudence. Jurisprudence in ancient Rome had its origins with the periti —experts in the jus mos maiorum (traditional law), a body of oral laws and customs. Praetors established a working body of laws by judging whether or not singular cases were capable of being prosecuted either by the edicta , the annual pronunciation of prosecutable offences, or in extraordinary situations, additions made to
6885-573: The European Communities Act 1972 (i.e. perjury before the Court of Justice of the European Union ) may be proceeded against and punished in England and Wales as for an offence under section 1(1). Section 1(4) has effect in relation to proceedings in the Court of Justice of the European Union as it has effect in relation to a judicial proceeding in a tribunal of a foreign state. Section 1(4) applies in relation to proceedings before
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#17327879512947020-424: The edicta . A iudex (originally a magistrate , later a private individual appointed to judge a specific case ) would then prescribe a remedy according to the facts of the case. The sentences of the iudex were supposed to be simple interpretations of the traditional customs, but—apart from considering what traditional customs applied in each case—soon developed a more equitable interpretation, coherently adapting
7155-420: The 18th century and was based on the first principles of natural law , civil law , and the law of nations . Contemporary philosophy of law addresses problems internal to law and legal systems and problems of law as a social institution that relates to the larger political and social context in which it exists. Jurisprudence can be divided into categories both by the type of question scholars seek to answer and by
7290-473: The American legal realists of the early twentieth century, legal realism sought to describe the way judges decide cases. For legal realists such as Jerome Frank , judges start with the facts before them and then move to legal principles. Before legal realism, theories of jurisprudence turned this method around where judges were thought to begin with legal principles and then look to facts. It has become common today to identify Justice Oliver Wendell Holmes Jr., as
7425-588: The Constitution. The Constitution of Japan , which came into effect on 3 May 1947, states in Article 39 that No person shall be held criminally liable for an act which was lawful at the time it was committed, or of which he has been acquitted, nor shall he be placed in double jeopardy. However, in 1950, one defendant was found guilty in the District Court for crimes related to the election law and
7560-559: The Cr.P.C. restricts any court to take cognisance of an offence of perjury unless the same is by way of a complaint in writing by the court before which the offence is committed or by a superior court." Punishment for perjury is defined under Section 109 of the Crimes Act 1961 . A person who commits perjury may be imprisoned for up to 7 years. If a person commits perjury to procure the conviction of someone charged with an offence that carries
7695-478: The Crown Prosecution Service sentencing manual. In Anglo-Saxon legal procedure, the offence of perjury could only be committed by both jurors and by compurgators . With time witnesses began to appear in court they were not so treated despite the fact that their functions were akin to that of modern witnesses. This was due to the fact that their role were not yet differentiated from those of
7830-459: The Dean of Harvard Law School , used this term to characterise his legal philosophy . In the United States, many later writers followed Pound's lead or developed distinctive approaches to sociological jurisprudence. In Australia, Julius Stone strongly defended and developed Pound's ideas. In the 1930s, a significant split between the sociological jurists and the American legal realists emerged. In
7965-636: The Parliament in England in 1540 with subornation of perjury and, in 1562, with perjury proper. The punishment for the offence then was in the nature of monetary penalty, recoverable in a civil action and not by penal sanction. In 1613, the Star Chamber declared perjury by a witness to be a punishable offence at common law. Prior to the 1911 Act, perjury was governed by section 3 of the Maintenance and Embracery Act 1540 5 Eliz 1 c. 9 ( An Act for
8100-507: The Punyshement of suche persones as shall procure or comit any wyllful Perjurye ; repealed 1967) and the Perjury Act 1728 . The requirement that the statement be material can be traced back to and has been credited to Edward Coke , who said: For if it be not material, then though it be false, yet it is no perjury, because it concerneth not the point in suit, and therefore in effect it is extra-judicial. Also this act giveth remedy to
8235-572: The State and the offence may for all incidental purposes be treated as having been committed in that place. "The offence of perjury finds its place in law by virtue of Section 191 to Section 203 of the Indian Penal Code, 1860 ('IPC'). Unlike many other countries, the offence of perjury is muted on account of Section 195 of the Code of Criminal Procedure, 1973 ("Cr.P.C"). Section 195(1)(b)(i) of
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#17327879512948370-594: The Supreme Court made a landmark decision in the area of double jeopardy. The case involved Article 235 of the Penal Code, which addresses "simple larceny", and Article 2 of the Law for Prevention and Disposition of Robbery, Theft, etc., which addresses "habitual larceny". The Court ruled that in the event that there are two trials for separate cases of simple larceny, it will not be considered double jeopardy, even if
8505-589: The Supreme Court made the Grand Bench Decision to rule against the defendant and declared that a criminal proceeding in the District Court, High Court and Supreme Court is all one case and that there is no double jeopardy. In other words, if the prosecutor appeals against a judgement of not guilty or a guilty decision that they think does not impose a severe enough sentence, the defendant will not be placed in double jeopardy. On 10 October 2003,
8640-472: The acquittal was tainted. In Western Australia , amendments introduced on 8 September 2011 allow retrial if "new and compelling" evidence is found. It applies to serious offences where the penalty is life imprisonment or imprisonment for 14 years or more. Acquittal because of tainting ( witness intimidation , jury tampering , or perjury) also permits retrial. In Tasmania , on 19 August 2008, amendments were introduced to allow retrial in serious cases if there
8775-433: The act and to have actually committed the act ( actus reus ). Further, statements that are facts cannot be considered perjury, even if they might arguably constitute an omission, and it is not perjury to lie about matters that are immaterial to the legal proceeding. Statements that entail an interpretation of fact are not perjury because people often draw inaccurate conclusions unwittingly or make honest mistakes without
8910-494: The act as the "willful and corrupt giving, upon a lawful oath, or in any form allowed by law to be substituted for an oath, in a judicial proceeding or course of justice, of a false testimony material to the issue or matter of inquiry". William Blackstone touched on the subject in his Commentaries on the Laws of England , establishing perjury as "a crime committed when a lawful oath is administered, in some judicial proceeding, to
9045-701: The appeal and the subsequent conviction are deemed to be a continuation of the original trial. For an appeal from an acquittal to be successful, the Supreme Court of Canada requires the Crown to show that an error in law was made during the trial and that it contributed to the verdict. It has been argued that this test is unfairly beneficial to the prosecution. For instance, in his book My Life in Crime and Other Academic Adventures , Martin Friedland contends that
9180-411: The basis of being analogous to the laws of physical science. Natural law is often contrasted to positive law which asserts law as the product of human activity and human volition. Another approach to natural-law jurisprudence generally asserts that human law must be in response to compelling reasons for action. There are two readings of the natural-law jurisprudential stance. Aristotle is often said to be
9315-410: The concept of autrefois convict , that no one convicted of an offence can be tried or punished a second time. However, it does not extend to autrefois acquit , and so if a person is acquitted of a crime he can be retried. In India, protection against autrefois acquit is a statutory right , not a fundamental one. Such protection is provided by provisions of the Code of Criminal Procedure rather than by
9450-650: The conduct of practical matters. The word first appeared in written English in 1628, at a time when the word prudence meant knowledge of, or skill in, a matter. It may have entered English via the French jurisprudence , which appeared earlier. The terms "philosophy of law" and "jurisprudence" are often used interchangeably, though jurisprudence sometimes encompasses forms of reasoning that fit into economics or sociology . Ancient jurisprudence begins with various Dharmaśāstra texts of India. Dharmasutras of Āpastaṃba and Baudhāyana are examples. In Ancient China,
9585-468: The content of legal concepts using the methods of social science , analytical jurisprudence seeks to provide a general account of the nature of law through the tools of conceptual analysis . The account is general in the sense of targeting universal features of law that hold at all times and places. Analytic, or clarificatory , jurisprudence takes a neutral point of view and uses descriptive language when referring to various aspects of legal systems. This
9720-411: The court of appeal ( Berufungsgericht ), which reconsiders the facts and reasons and delivers a final judgement. If one of the parties disagrees with the second instance's judgement, they can appeal it only for formal judicial reasons. The case will be checked in the third instance ( Revisionsgericht ) to see whether all laws were correctly applied. The rule applies to the whole "historical event, which
9855-473: The defendant with one count of habitual larceny or to charge them with multiple counts of trespassing and simple larceny. In either case, it is not considered double jeopardy. In the Netherlands, the state prosecution can appeal a not-guilty verdict at the bench. New evidence can be applied during a retrial at a district court . Thus one can be tried twice for the same alleged crime. If one is convicted at
9990-459: The district court, the defence can make an appeal on procedural grounds to the supreme court. The supreme court might admit this complaint, and the case will be reopened yet again, at another district court. Again, new evidence might be introduced by the prosecution. On 9 April 2013, the Dutch senate voted 36 "yes" versus 35 "no" in favour of a new law that allows the prosecutor to re-try a person who
10125-538: The diverse kinds of developing transnational law) and the increasingly important interrelations of law and culture, especially in multicultural Western societies. Legal positivism is the view that the content of law is dependent on social facts and that a legal system's existence is not constrained by morality. Within legal positivism, theorists agree that law's content is a product of social facts, but theorists disagree whether law's validity can be explained by incorporating moral values. Legal positivists who argue against
10260-484: The double jeopardy laws were modified to allow a retrial where fresh and compelling evidence becomes available after an acquittal for murder or a "tainted acquittal" for a crime carrying a 25-year or more sentence. A "tainted acquittal" requires a conviction for an administration of justice offence, such as perjury, that led to the original acquittal. The Canadian Charter of Rights and Freedoms includes provisions such as section 11(h) prohibiting double jeopardy. However,
10395-575: The early Roman Empire to the 3rd century, a relevant body of literature was produced by groups of scholars, including the Proculians and Sabinians . The scientific nature of the studies was unprecedented in ancient times. After the 3rd century, juris prudentia became a more bureaucratic activity, with few notable authors. It was during the Eastern Roman Empire (5th century) that legal studies were once again undertaken in depth, and it
10530-501: The empirical methods used by social scientists. Prominent Scandinavian legal realists are Alf Ross , Axel Hägerström , and Karl Olivecrona . Scandinavian legal realists also took a naturalist approach to law. Despite its decline in popularity, legal realism continues to influence a wide spectrum of jurisprudential schools today, including critical legal studies , feminist legal theory , critical race theory , sociology of law , and law and economics . Critical legal studies are
10665-476: The extent to which they are binding. Kelsen contends that the extent to which legal norms are binding, their specifically "legal" character, can be understood without tracing it ultimately to some suprahuman source such as God, personified Nature or—of great importance in his time—a personified State or Nation. In the English-speaking world, the most influential legal positivist of the twentieth century
10800-488: The father of natural law. Like his philosophical forefathers Socrates and Plato, Aristotle posited the existence of natural justice or natural right ( dikaion physikon , δικαίον φυσικόν , Latin ius naturale ). His association with natural law is largely due to how he was interpreted by Thomas Aquinas . This was based on Aquinas' conflation of natural law and natural right, the latter of which Aristotle posits in Book V of
10935-734: The father of the Thomistic school of philosophy, for a long time the primary philosophical approach of the Roman Catholic Church . The work for which he is best known is the Summa Theologiae . One of the thirty-five Doctors of the Church , he is considered by many Catholics to be the Church's greatest theologian. Consequently, many institutions of learning have been named after him. Aquinas distinguished four kinds of law: eternal, natural, divine, and human: Natural law
11070-436: The features of law shared across cultures, times, and places. Taken together, these foundational features of law offer the kind of universal definition philosophers are after. The general approach allows philosophers to ask questions about, for example, what separates law from morality, politics, or practical reason. While the field has traditionally focused on giving an account of law's nature, some scholars have begun to examine
11205-426: The general perjury statute under federal law classifies perjury as a felony and provides for a prison sentence of up to five years. The California Penal Code allows for perjury to be a capital offense in cases causing wrongful execution . Perjury which caused the wrongful execution of another or in the pursuit of causing the wrongful execution of another is respectively construed as murder or attempted murder, and
11340-553: The governed to obey. Secondary rules are rules that confer authority to create new primary rules or modify existing ones. Secondary rules are divided into rules of adjudication (how to resolve legal disputes), rules of change (how laws are amended), and the rule of recognition (how laws are identified as valid). The validity of a legal system comes from the "rule of recognition", which is a customary practice of officials (especially barristers and judges) who identify certain acts and decisions as sources of law. In 1981, Neil MacCormick wrote
11475-532: The incorporation of moral values to explain law's validity are labeled exclusive (or hard) legal positivists. Joseph Raz's legal positivism is an example of exclusive legal positivism. Legal positivists who argue that law's validity can be explained by incorporating moral values are labeled inclusive (or soft) legal positivists. The legal positivist theories of H. L. A. Hart and Jules Coleman are examples of inclusive legal positivism. Legal positivism has traditionally been associated with three doctrines:
11610-443: The instant the declarant falsely asserts the truth of statements (made or to be made) that are material to the outcome of the proceeding. It is not perjury, for example, to lie about one's age except if age is a fact material to influencing the legal result, such as eligibility for old age retirement benefits or whether a person was of an age to have legal capacity . Perjury is considered a serious offence, as it can be used to usurp
11745-413: The intent to deceive. Individuals may have honest but mistaken beliefs about certain facts or their recollection may be inaccurate, or may have a different perception of what is the accurate way to state the truth. In some jurisdictions, no crime has occurred when a false statement is (intentionally or unintentionally) made while under oath or subject to penalty. Instead, criminal culpability attaches only at
11880-479: The jurisdiction of the same State for an offence for which he or she has already been finally acquitted or convicted in accordance with the law and penal procedure of that State." All EU states ratified this optional protocol except for Germany, the United Kingdom, and the Netherlands. In those member states, national rules governing double jeopardy may or may not comply with the provision cited above. Member states may, however, implement legislation which allows
12015-526: The juror and so evidence or perjury by witnesses was not made a crime. Even in the 14th century, when witnesses started appearing before the jury to testify, perjury by them was not made a punishable offence. The maxim then was that every witness's evidence on oath was true. Perjury by witnesses began to be punished before the end of the 15th century by the Star Chamber . The immunity enjoyed by witnesses began also to be whittled down or interfered with by
12150-428: The jury. Turcotte was later convicted of second-degree murder in the second trial. Another well-known example is Henry Morgentaler , whose repeated acquittals by juries were overturned on appeal in multiple provinces. Once all appeals have been exhausted on a case, the judgement is final and the action of the prosecution is closed (code of penal procedure, art. 6), except if the final ruling was forged . Prosecution for
12285-730: The law and penal procedure of each country." However, it does not apply to prosecutions by two different sovereigns (unless the relevant extradition treaty expresses a prohibition). All members of the Council of Europe (which includes nearly all European countries and every member of the European Union ) have adopted the European Convention on Human Rights . The optional Protocol No. 7 to the convention, Article 4, protects against double jeopardy: "No one shall be liable to be tried or punished again in criminal proceedings under
12420-524: The law as it is. Austin explained the descriptive focus for legal positivism by saying, "The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry." For Austin and Bentham, a society is governed by a sovereign who has de facto authority. Through the sovereign's authority come laws, which for Austin and Bentham are commands backed by sanctions for non-compliance. Along with Hume, Bentham
12555-473: The law to newer social exigencies. The law was then adjusted with evolving institutiones (legal concepts), while remaining in the traditional mode. Praetors were replaced in the 3rd century BC by a laical body of prudentes . Admission to this body was conditional upon proof of competence or experience. Under the Roman Empire , schools of law were created, and practice of the law became more academic. From
12690-519: The main precursor of American Legal Realism (other influences include Roscoe Pound , Karl Llewellyn , and Justice Benjamin Cardozo ). Karl Llewellyn, another founder of the U.S. legal realism movement, similarly believed that the law is little more than putty in the hands of judges who are able to shape the outcome of cases based on their personal values or policy choices. The Scandinavian school of legal realism argued that law can be explained through
12825-409: The making of a statement, whether true or false, on oath in a judicial proceeding, where the person knows the statement to be false or believes it to be false. Perjury is a conduct crime . Perjury is triable only on indictment . A person convicted of perjury is liable to imprisonment for a term not exceeding seven years, or to a fine, or to both. The following cases are relevant: See also
12960-500: The morality enacted as law, not the laws themselves. The best evidence of Aristotle's having thought there was a natural law comes from the Rhetoric , where Aristotle notes that, aside from the "particular" laws that each people has set up for itself, there is a "common" law that is according to nature. The context of this remark, however, suggests only that Aristotle thought that it could be rhetorically advantageous to appeal to such
13095-425: The nature of domains within law, e.g. tort law, contract law, or criminal law. These scholars focus on what makes certain domains of law distinctive and how one domain differs from another. A particularly fecund area of research has been the distinction between tort law and criminal law, which more generally bears on the difference between civil and criminal law. In addition to analytic jurisprudence, legal philosophy
13230-461: The outcome of the case. In many European countries, the prosecution may appeal an acquittal to a higher court. This is not regarded as double jeopardy, but as a continuation of the same case. The European Convention on Human Rights permits this by using the phrase "finally acquitted or convicted" as the trigger for prohibiting subsequent prosecution. In contrast to other common law nations, Australian double jeopardy law has been held to further prevent
13365-604: The overturn of his conviction (for perjury) by the High Court has led to widespread calls for reform of the law along the lines of the England and Wales legislation. During a Council of Australian Governments (COAG) meeting of 2007, model legislation to rework double jeopardy laws was drafted, but there was no formal agreement for each state to introduce it. All states have now chosen to introduce legislation that mirrors COAG's recommendations on "fresh and compelling" evidence. In New South Wales , retrials of serious cases with
13500-549: The party grieved, and if the deposition be not material, he cannot be grieved thereby. Perjury is a statutory offence in Northern Ireland . It is created by article 3(1) of the Perjury (Northern Ireland) Order 1979 (S.I. 1979/1714 (N.I. 19)). This replaces the Perjury Act (Northern Ireland) 1946 (c. 13) (N.I.). Perjury operates in American law as an inherited principle of the common law of England, which defined
13635-465: The pedigree thesis, the separability thesis, and the discretion thesis. The pedigree thesis says that the right way to determine whether a directive is law is to look at the directive's source. The thesis claims that it is the fact that the directive was issued by the proper official within a legitimate government, for example, that determines the directive's legal validity—not the directive's moral or practical merits. The separability thesis states that law
13770-427: The philosophy of Thomas Aquinas , especially in his Treatise on law . In late 20th century, John Finnis revived interest in the theory and provided a modern reworking of it. For one, Finnis has argued that the maxim "an unjust law is no law at all" is a poor guide to the classical Thomist position. In its general sense, natural law theory may be compared to both state-of-nature law and general law understood on
13905-427: The post-1870 period. Francisco Suárez , regarded as among the greatest scholastics after Aquinas, subdivided the concept of ius gentium . Working with already well-formed categories, he carefully distinguished ius inter gentes from ius intra gentes . Ius inter gentes (which corresponds to modern international law) was something common to the majority of countries, although, being positive law, not natural law, it
14040-471: The power of the courts, resulting in miscarriages of justice . In Canada , those who commit perjury are guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. Perjury is a statutory offence in England and Wales . A person convicted of perjury is liable to imprisonment for a term not exceeding seven years, or to a fine, or to both. In the United States ,
14175-445: The prohibition only applies after an accused person has been "finally" convicted or acquitted. Canadian law allows the prosecution to appeal an acquittal based on legal errors. In rare circumstances, when a trial judge made all the factual findings necessary for a finding of guilt but misapplied the law, a court of appeal might also directly substitute an acquittal for a conviction. These cases are not considered double jeopardy because
14310-429: The prosecution for perjury following a previous acquittal where a finding of perjury would controvert the acquittal. This was confirmed in the case of R v Carroll , where the police found new evidence convincingly disproving Carroll's sworn alibi two decades after he had been acquitted of murder charges in the death of Ipswich child Deidre Kennedy, and successfully prosecuted him for perjury. Public outcry following
14445-431: The prosecutor could have charged both of them as a single crime of habitual larceny. The defendant in this case had committed crimes of trespassing and simple larceny on 22 occasions. The defence counsel argued that the crimes were actually one offence of habitual larceny and that charging them as separate counts was double jeopardy. The Supreme Court ruled that it was within the prosecutor's discretion as to whether to charge
14580-426: The purposes of this section as having been made in the judicial proceeding in England for the purposes whereof it was made. (6) The question whether a statement on which perjury is assigned was material is a question of law to be determined by the court of trial. The words omitted from section 1(1) were repealed by section 1(2) of the Criminal Justice Act 1948 . A person guilty of an offence under section 11(1) of
14715-400: The purposes of this section, be treated as a statement made in a judicial proceeding in England. (5) Where, for the purposes of a judicial proceeding in England, a person is lawfully sworn under the authority of an Act of Parliament— a statement made by such person so sworn as aforesaid (unless the Act of Parliament under which it was made otherwise specifically provides) shall be treated for
14850-418: The reopening of a case if new evidence is found or if there was a fundamental defect in the previous proceedings: The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect
14985-423: The rule should be changed so that a retrial is granted only when the error is shown to be responsible for the verdict, not just a factor. Though the charter permits appeals of acquittals, there are still constitutional limits imposed on the scope of these appeals. In Corp. Professionnelle des Médecins v. Thibault , the Supreme Court struck down a provision of Quebec law that allowed appellate courts to conduct
15120-469: The rules: Jurisprudence Jurisprudence , also known as theory of law or philosophy of law , is the examination in a general perspective of what law is and what it ought to be. It investigates issues such as the definition of law; legal validity; legal norms and values; as well as the relationship between law and other fields of study, including economics , ethics , history , sociology , and political philosophy . Modern jurisprudence began in
15255-687: The same effect. Double jeopardy is not a principle of international law . It does not apply between different countries, unless having been contractually agreed on between those countries as, for example, in the European Union (Art. 54 Schengen Convention ), and in various extradition treaties between two countries. The 72 signatories and 166 parties to the International Covenant on Civil and Political Rights recognise, under Article 14 (7): "No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with
15390-461: The same time refusing to evaluate those norms. That is, "legal science" is to be separated from "legal politics". Central to the Pure Theory of Law is the notion of a ' basic norm ' ( Grundnorm )—a hypothetical norm, presupposed by the jurist, from which all "lower" norms in the hierarchy of a legal system , beginning with constitutional law , are understood to derive their authority or
15525-507: The second half of the twentieth century, sociological jurisprudence as a distinct movement declined as jurisprudence came more strongly under the influence of analytical legal philosophy; but with increasing criticism of dominant orientations of legal philosophy in English-speaking countries in the present century, it has attracted renewed interest. Increasingly, its contemporary focus is on providing theoretical resources for jurists to aid their understanding of new types of regulation (for example,
15660-401: The sense of "general justice"; as such, this idea of justice is more or less coextensive with virtue. "Particular" or "partial justice", by contrast, is the part of "general justice" or the individual virtue that is concerned with treating others equitably. Aristotle moves from this unqualified discussion of justice to a qualified view of political justice, by which he means something close to
15795-444: The standard account of the origins of International law, which emphasises the seminal text De iure belli ac pacis by Hugo Grotius , and argued for Vitoria and, later, Suárez's importance as forerunners and, potentially, founders of the field. Others, such as Koskenniemi, have argued that none of these humanist and scholastic thinkers can be understood to have founded international law in the modern sense, instead placing its origins in
15930-628: The statement is false. (1.1) Subject to subsection (3), every person who gives evidence under subsection 46(2) of the Canada Evidence Act , or gives evidence or a statement pursuant to an order made under section 22.2 of the Mutual Legal Assistance in Criminal Matters Act , commits perjury who, with intent to mislead, makes a false statement knowing that it is false, whether or not the false statement
16065-411: The subject of modern jurisprudence. Of political justice, Aristotle argues that it is partly derived from nature and partly a matter of convention. This can be taken as a statement that is similar to the views of modern natural law theorists. But it must also be remembered that Aristotle is describing a view of morality, not a system of law, and therefore his remarks as to nature are about the grounding of
16200-446: The tax return perjury statute. See: 26 U.S.C. § 7206(1) In the United States, Kenya , Scotland and several other English-speaking Commonwealth nations, subornation of perjury , which is attempting to induce another person to commit perjury, is itself a crime. Perjury is punishable by imprisonment in various states and territories of Australia. In several jurisdictions, longer prison sentences are possible if perjury
16335-452: The theories of jurisprudence, or schools of thought, regarding how those questions are best answered: The terms "philosophy of law" and "jurisprudence" are often used interchangeably, though jurisprudence sometimes encompasses forms of reasoning that fit into economics or sociology . Whereas lawyers are interested in what the law is on a specific issue in a specific jurisdiction, analytical philosophers of law are interested in identifying
16470-471: The theorist's work. The natural law theorists of the distant past, such as Aquinas and John Locke made no distinction between analytic and normative jurisprudence, while modern natural law theorists, such as John Finnis, who claim to be positivists, still argue that law is moral by nature. In his book Natural Law and Natural Rights (1980, 2011), John Finnis provides a restatement of natural law doctrine. Unlike experimental jurisprudence , which investigates
16605-504: The traditions, customs, and beliefs of the German people did not include a belief in a code. Historicists believe that law originates with society. An effort to systematically inform jurisprudence from sociological insights developed from the beginning of the twentieth century, as sociology began to establish itself as a distinct social science , especially in the United States and in continental Europe . In Germany, Austria and France ,
16740-418: The witness's evidence is given. Where any statement made by a person on oath in any proceeding which is not a judicial proceeding for the purposes of section 1 is received in evidence in pursuance of a special measures direction , that proceeding must be taken for the purposes of section 1 to be part of the judicial proceeding in which the statement is so received in evidence. The definition in section 1(2)
16875-410: The work of the "free law" theorists (e.g. Ernst Fuchs, Hermann Kantorowicz , Eugen Ehrlich and François Gény ) encouraged the use of sociological insights in the development of legal and juristic theory. The most internationally influential advocacy for a "sociological jurisprudence" occurred in the United States, where, throughout the first half of the twentieth century, Roscoe Pound , for many years
17010-515: Was H. L. A. Hart , professor of jurisprudence at Oxford University . Hart argued that the law should be understood as a system of social rules. In The Concept of Law , Hart rejected Kelsen's views that sanctions were essential to law and that a normative social phenomenon, like law, cannot be grounded in non-normative social facts. Hart claimed that law is the union of primary rules and secondary rules. Primary rules require individuals to act or not act in certain ways and create duties for
17145-416: Was a philosophical development that rejected natural law's fusing of what law is and what it ought to be. David Hume argued, in A Treatise of Human Nature , that people invariably slip from describing what the world is to asserting that we therefore ought to follow a particular course of action. But as a matter of pure logic, one cannot conclude that we ought to do something merely because something
17280-490: Was a reaction to legal formalism that was popular the time due to the Christopher Columbus Langdell . Holmes's writings on jurisprudence also laid the foundations for the predictive theory of law. In his article "The Path of the Law", Holmes argues that "the object of [legal] study...is prediction, the prediction of the incidence of the public force through the instrumentality of the courts." For
17415-423: Was an early and staunch supporter of the utilitarian concept, and was an avid prison reformer, advocate for democracy , and firm atheist . Bentham's views about law and jurisprudence were popularized by his student John Austin . Austin was the first chair of law at the new University of London , from 1829. Austin's utilitarian answer to "what is law?" was that law is "commands, backed by threat of sanctions, from
17550-575: Was committed with the intent of convicting or acquitting a person charged with a serious offence. The offence of perjury is codified by section 132 of the Criminal Code . It is defined by section 131, which provides: (1) Subject to subsection (3), every one commits perjury who, with intent to mislead, makes before a person who is authorized by law to permit it to be made before him a false statement under oath or solemn affirmation, by affidavit, solemn declaration or deposition or orally, knowing that
17685-413: Was found not guilty in court. This new law is limited to crimes where someone died and new evidence must have been gathered. The new law also works retroactively. Article 13 of the Constitution of Pakistan protects a person from being punished or prosecuted more than once for the same offence. Section 403 of The Code of Criminal Procedure contemplates a situation where a person having once been tried by
17820-423: Was made under oath or solemn affirmation in accordance with subsection (1), so long as the false statement was made in accordance with any formalities required by the law of the place outside Canada in which the person is virtually present or heard. (2) Subsection (1) applies, whether or not a statement referred to in that subsection is made in a judicial proceeding. (3) Subsections (1) and (1.1) do not apply to
17955-487: Was not necessarily universal. On the other hand, ius intra gentes , or civil law, is specific to each nation. Writing after World War II , Lon L. Fuller defended a secular and procedural form of natural law. He emphasised that the (natural) law must meet certain formal requirements (such as being impartial and publicly knowable). To the extent that an institutional system of social control falls short of these requirements, Fuller argued, we are less inclined to recognise it as
18090-478: Was sentenced to paying a fine. The prosecutor wanted a stronger sentence and appealed to the High Court. As a result, the defendant was sentenced to three months of imprisonment. He appealed to the Supreme Court on the grounds that the sentence was excessive when compared with precedents and that he had been placed in double jeopardy, which was in violation of Article 39. On 27 September 1950, all fifteen judges of
18225-471: Was wrongfully convicted in his second trial after the acquittal in his first trial was vacated by the Supreme Court. Another notable use of the system occurred in the case of child murderer Guy Turcotte , the Quebec Court of Appeal overturned the initial verdict of not criminally responsible by reason of mental disorder and ordered a second trial after it found that the judge had erroneously instructed
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