Positive Obligations and Criminal Justice: Duties to Protect or Coerce?
Positive Obligations and Criminal Justice: Duties to Protect or Coerce?
This chapter explores the relationship between criminal law, criminal process, and human rights from a slightly different perspective. It seeks to demonstrate that while human rights may well be used to limit the excesses of security and law and order politics, the nature of the relationship between human rights and criminal justice cannot be captured alone by the view of rights as a limit on the coercive reach of the criminal law and criminal justice institutions. The chapter is organized as follows. It starts by outlining key areas where positive rights claims have shaped the criminal law and criminal justice process. It then examines the relationship between positive rights and coercion, and critiques the language used to frame certain positive duties. Finally, the right to security is used as a case study through which to demonstrate the concerns raised by the development of coercive duties.
Keywords: human rights, criminal law, criminal process, positive rights, coercion, coercive duties
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