Die betekenis van die reformatoriese regsfilosofie vir die teoretiese grondslae van die strafreg

Abstract

The general perception that philosophy has little (if any) meaning and implication for legal practice or legal science, is highly debatable. This dissertation suggests that the reformational philosophy of law not only contributes to a fundamental understanding of criminal law but, also provides a theoretical basis for it. The reformational philosophy of law followed in this dissertation, is that founded and digressed upon by Dooyeweerd and Van Eikema Hommes. The application of the concepts (simple and complex) of this philosophy of law has the following implications for criminal law: (a) the requirements of a crime (i.e. the facta probanda) are based on legal principles, therefore a definite sequence of these requirements can be distinguished , (b) section 300 of the Criminal Procedure Act 51 of 1977, enacted in criminal law, embodies civil law , (c) the theories of punishment must be applied in combination, on the basis of retribution (i.e legal proportionality) as the basic and fundamental componant. The other componants must refine and direct convictions and sentences on this basis. Mercy is not an additional componant to be taken into account when determining sentence. It serves to describe the correct application of the unitary-theory.