De Rol van de Wetgever en de Rechter bij de Strafrechtsbedeling volgens Goswin de Fierlant (1735–1804).

Goswin de Fierlant's works on criminal law (and particularly his Premières idées sur la réformation des loix criminelles) were all written between 1770 and 1782. These writings were meant to toll the knell for the higher courts and the Privy Council in the Austrian Netherlands; it was not their purpose to be published as doctrinal treatises for general use. As most other enlightened criminal lawyers of his time, de Fierlant applied the 'legality-principle' (Nullum crimen sine lege, nulla poena sine lege) for determining the respective roles of the legislator and the judge in the administration of criminal justice. In his view, criminal justice should as far as possible be governed by statute-law. However, as a practitioner, de Fierlant realised that a strict application of that principle was impossible for all the various features of criminal justice. He therefore argued that the strict principle of legality was only required for establishing the rules governing criminal proceedings and offences; in its narrowest sense, it was neither suitable for establishing the evidence, nor for sentencing. For evidence and sentencing, de Fierlant admitted a relative application of the legality-principle. Thus, the judge would be allowed a certain latitude in criminal matters, within the boundaries laid down by the legislator. That view anticipates exactly the principles of criminal policy on which contemporary law is based as regards evidence in criminal proceedings and mitigating circumstances, which are now left almost entirely to the judge's discretion. [ABSTRACT FROM AUTHOR]