Lawrence M. Friedman
- Published in print:
- 2019
- Published Online:
- October 2019
- ISBN:
- 9780190070885
- eISBN:
- 9780190070922
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190070885.003.0019
- Subject:
- Law, Legal History
This chapter discusses the development of criminal law in the second half of the nineteenth century, covering the statute law of crimes, crime rates, insanity, punishment and correction, and ...
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This chapter discusses the development of criminal law in the second half of the nineteenth century, covering the statute law of crimes, crime rates, insanity, punishment and correction, and victimless crimes. The formal criminal law in the late nineteenth century was by and large a matter of statute. The concept of the common-law crime had been wiped out in federal law. The concept also decayed on the state level. As of 1900, some states still technically recognized the possibility of a common-law crime. Other states, by statute, had specifically abolished the concept. Only acts listed in the penal code were crimes, and nothing else. In some states, the courts construed their penal codes as (silently) abolishing common-law crime. Where the concept survived, it was hardly ever used; the penal codes were as a practical matter complete and exclusive—the total catalog of crime.Less
This chapter discusses the development of criminal law in the second half of the nineteenth century, covering the statute law of crimes, crime rates, insanity, punishment and correction, and victimless crimes. The formal criminal law in the late nineteenth century was by and large a matter of statute. The concept of the common-law crime had been wiped out in federal law. The concept also decayed on the state level. As of 1900, some states still technically recognized the possibility of a common-law crime. Other states, by statute, had specifically abolished the concept. Only acts listed in the penal code were crimes, and nothing else. In some states, the courts construed their penal codes as (silently) abolishing common-law crime. Where the concept survived, it was hardly ever used; the penal codes were as a practical matter complete and exclusive—the total catalog of crime.
George P. Fletcher
- Published in print:
- 2019
- Published Online:
- October 2019
- ISBN:
- 9780190903572
- eISBN:
- 9780190903602
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190903572.003.0001
- Subject:
- Law, Criminal Law and Criminology, Public International Law
This introductory chapter provides an overview of the basic concepts of international criminal law. To understand the international legal order in the field of criminal law, one needs to ask three ...
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This introductory chapter provides an overview of the basic concepts of international criminal law. To understand the international legal order in the field of criminal law, one needs to ask three elementary questions. What is international law? What is criminal law? And what happens to these two fields when they are joined together? International law is about the legal obligations that arise between and among states. Meanwhile, the concepts of crime and criminal law are more complex than meets the eye. The chapter then considers the Dogmatik of international criminal law and the relevance of the law of war. The most significant contribution of the Dogmatik for criminal law was the invention of the tripartite system, namely the three levels of analysis that determine the structure of every criminal offense.Less
This introductory chapter provides an overview of the basic concepts of international criminal law. To understand the international legal order in the field of criminal law, one needs to ask three elementary questions. What is international law? What is criminal law? And what happens to these two fields when they are joined together? International law is about the legal obligations that arise between and among states. Meanwhile, the concepts of crime and criminal law are more complex than meets the eye. The chapter then considers the Dogmatik of international criminal law and the relevance of the law of war. The most significant contribution of the Dogmatik for criminal law was the invention of the tripartite system, namely the three levels of analysis that determine the structure of every criminal offense.
Lawrence M. Friedman
- Published in print:
- 2019
- Published Online:
- October 2019
- ISBN:
- 9780190070885
- eISBN:
- 9780190070922
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190070885.003.0008
- Subject:
- Law, Legal History
This chapter discusses the history of American criminal law, covering penal law and penal reform, prison, and tort. The criminal law is an important lever of power, for any government. The leaders of ...
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This chapter discusses the history of American criminal law, covering penal law and penal reform, prison, and tort. The criminal law is an important lever of power, for any government. The leaders of the American Revolution felt strongly that the British were trampling on American rights and were abusing criminal justice. The right to a fair criminal trial was a fundamental right, in their eyes. The Bill of Rights was a kind of minicode of criminal procedure. Moreover, in the late eighteenth century, scholars were rethinking the premises on which criminal law rested. Great reformers called for a more enlightened system of criminal law.Less
This chapter discusses the history of American criminal law, covering penal law and penal reform, prison, and tort. The criminal law is an important lever of power, for any government. The leaders of the American Revolution felt strongly that the British were trampling on American rights and were abusing criminal justice. The right to a fair criminal trial was a fundamental right, in their eyes. The Bill of Rights was a kind of minicode of criminal procedure. Moreover, in the late eighteenth century, scholars were rethinking the premises on which criminal law rested. Great reformers called for a more enlightened system of criminal law.
George P. Fletcher
- Published in print:
- 2019
- Published Online:
- October 2019
- ISBN:
- 9780190903572
- eISBN:
- 9780190903602
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190903572.001.0001
- Subject:
- Law, Criminal Law and Criminology, Public International Law
This book is an invitation to readers interested in the future of international cooperation to master the 12 basic dichotomies of international criminal law. The book foresees a growing interest in ...
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This book is an invitation to readers interested in the future of international cooperation to master the 12 basic dichotomies of international criminal law. The book foresees a growing interest in international order and cooperation following the current preoccupation, in Europe as well as the United States, with national self-interest. By emphasizing basic dichotomies, for example, acts vs. omissions and causation vs. background conditions, the book reinforces the jurisprudential foundations of international criminal law and also provides an easy way to master the details of the field.Less
This book is an invitation to readers interested in the future of international cooperation to master the 12 basic dichotomies of international criminal law. The book foresees a growing interest in international order and cooperation following the current preoccupation, in Europe as well as the United States, with national self-interest. By emphasizing basic dichotomies, for example, acts vs. omissions and causation vs. background conditions, the book reinforces the jurisprudential foundations of international criminal law and also provides an easy way to master the details of the field.
Rowan Cruft
- Published in print:
- 2019
- Published Online:
- October 2019
- ISBN:
- 9780198793366
- eISBN:
- 9780191884122
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198793366.003.0010
- Subject:
- Philosophy, Moral Philosophy
The first half of Chapter 10 addresses criticisms of the conception of human rights developed in Chapter 9: that it overlooks how human rights law protects collective goods rather than the ...
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The first half of Chapter 10 addresses criticisms of the conception of human rights developed in Chapter 9: that it overlooks how human rights law protects collective goods rather than the individual, and that it overlooks the centrality of the state as duty-bearer in human rights law. The author’s response includes noting that state-focused human rights law is only one way in which ‘natural’ human rights are institutionalized: criminal law and non-law policy also play human rights roles. The chapter’s second half argues that human rights not only exist ‘for the right-holder’s sake’ (as in Chapters 7–9) but are also rights whose protection is distinctively ‘everyone’s business’: rights with which any human anywhere can show solidarity by demanding their fulfilment. This does not imply that human rights violations in one state are equally every state’s business. The chapter ends by summarizing Part II (Chapters 7–10) as vindicating the idea of human rights.Less
The first half of Chapter 10 addresses criticisms of the conception of human rights developed in Chapter 9: that it overlooks how human rights law protects collective goods rather than the individual, and that it overlooks the centrality of the state as duty-bearer in human rights law. The author’s response includes noting that state-focused human rights law is only one way in which ‘natural’ human rights are institutionalized: criminal law and non-law policy also play human rights roles. The chapter’s second half argues that human rights not only exist ‘for the right-holder’s sake’ (as in Chapters 7–9) but are also rights whose protection is distinctively ‘everyone’s business’: rights with which any human anywhere can show solidarity by demanding their fulfilment. This does not imply that human rights violations in one state are equally every state’s business. The chapter ends by summarizing Part II (Chapters 7–10) as vindicating the idea of human rights.
George P. Fletcher
- Published in print:
- 2019
- Published Online:
- October 2019
- ISBN:
- 9780190903572
- eISBN:
- 9780190903602
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190903572.003.0013
- Subject:
- Law, Criminal Law and Criminology, Public International Law
This concluding chapter looks at the concepts of law and justice. There are two concepts of law: law as principle and law as rule or regularity. The former is normative, while the latter is ...
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This concluding chapter looks at the concepts of law and justice. There are two concepts of law: law as principle and law as rule or regularity. The former is normative, while the latter is descriptive. The chapter then considers the concept of justice. In the philosophical theory of justice, one must distinguish among relevant areas of private and criminal law. Retributive justice applies in criminal law, corrective justice in torts, and distributive justice in property law. In all of these areas, the claims of justice face challenges from utilitarian and economic considerations and based on efficiency, for example, deterrence in criminal law, searching for the cheapest cost avoider in tort law, and stability in property law.Less
This concluding chapter looks at the concepts of law and justice. There are two concepts of law: law as principle and law as rule or regularity. The former is normative, while the latter is descriptive. The chapter then considers the concept of justice. In the philosophical theory of justice, one must distinguish among relevant areas of private and criminal law. Retributive justice applies in criminal law, corrective justice in torts, and distributive justice in property law. In all of these areas, the claims of justice face challenges from utilitarian and economic considerations and based on efficiency, for example, deterrence in criminal law, searching for the cheapest cost avoider in tort law, and stability in property law.
Thomas M. Green
- Published in print:
- 2019
- Published Online:
- October 2019
- ISBN:
- 9780198759331
- eISBN:
- 9780191819889
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198759331.003.0023
- Subject:
- Religion, History of Christianity, Theology
This chapter argues that the subject of theology and jurisprudence in Scotland falls into two distinct and often independent histories, the first concerning the reception of Canon law in Scotland ...
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This chapter argues that the subject of theology and jurisprudence in Scotland falls into two distinct and often independent histories, the first concerning the reception of Canon law in Scotland prior to the Reformation in respect of both ecclesiastical and civil law, the second concerning the reception of the ‘law of God’ into ecclesiastical and criminal law during the era of the Reformation. The continued authority of Canon law in Protestant Scotland is considered alongside the development of the Church of Scotland’s disciplinary jurisdiction and the criminalization of sin. Areas in which these two distinct histories intersected in respect of marriage law and the law of incest are considered. The interaction of theology and jurisprudence among the writings of Scotland’s earliest legal writers and earliest institutional writers is also considered, including the influence of Calvinism on criminal law, and of scholastic moral theology on Scots private law.Less
This chapter argues that the subject of theology and jurisprudence in Scotland falls into two distinct and often independent histories, the first concerning the reception of Canon law in Scotland prior to the Reformation in respect of both ecclesiastical and civil law, the second concerning the reception of the ‘law of God’ into ecclesiastical and criminal law during the era of the Reformation. The continued authority of Canon law in Protestant Scotland is considered alongside the development of the Church of Scotland’s disciplinary jurisdiction and the criminalization of sin. Areas in which these two distinct histories intersected in respect of marriage law and the law of incest are considered. The interaction of theology and jurisprudence among the writings of Scotland’s earliest legal writers and earliest institutional writers is also considered, including the influence of Calvinism on criminal law, and of scholastic moral theology on Scots private law.
George P. Fletcher
- Published in print:
- 2019
- Published Online:
- October 2019
- ISBN:
- 9780190903572
- eISBN:
- 9780190903602
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190903572.003.0003
- Subject:
- Law, Criminal Law and Criminology, Public International Law
This chapter focuses on tort liability. In the international legal order, the tort regime is of particular importance. As we shall see, the Alien Tort Claims Act has a vital role to play either as a ...
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This chapter focuses on tort liability. In the international legal order, the tort regime is of particular importance. As we shall see, the Alien Tort Claims Act has a vital role to play either as a backup to a failed attempt at criminal prosecution or the inability to get jurisdiction over a defendant in hiding. Thus, the international regime of tort liability responds to the same concerns of “impunidad” as one finds in the Preamble of the Rome Statute. The chapter then looks at the concept of punishment. Punishment is the domain of criminal law. Liability in tort cases is not officially punishment. In fact, punitive damages imposed by an American jury can have more severe consequences than a brief period in jail. Yet the line between crime and tort is maintained strictly in American jurisprudence.Less
This chapter focuses on tort liability. In the international legal order, the tort regime is of particular importance. As we shall see, the Alien Tort Claims Act has a vital role to play either as a backup to a failed attempt at criminal prosecution or the inability to get jurisdiction over a defendant in hiding. Thus, the international regime of tort liability responds to the same concerns of “impunidad” as one finds in the Preamble of the Rome Statute. The chapter then looks at the concept of punishment. Punishment is the domain of criminal law. Liability in tort cases is not officially punishment. In fact, punitive damages imposed by an American jury can have more severe consequences than a brief period in jail. Yet the line between crime and tort is maintained strictly in American jurisprudence.
Lawrence M. Friedman
- Published in print:
- 2019
- Published Online:
- October 2019
- ISBN:
- 9780190070885
- eISBN:
- 9780190070922
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190070885.001.0001
- Subject:
- Law, Legal History
This book is a general history of the legal system of the United States, beginning in the colonial period, and continuing up to the present. The work was originally published in 1973; this is the ...
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This book is a general history of the legal system of the United States, beginning in the colonial period, and continuing up to the present. The work was originally published in 1973; this is the fourth edition, which brings the material up to date and incorporates recent research. The book covers the changing configurations of commercial law, criminal law, and family law, and the law of property; lays great stress on race relations, especially black-white relations; it deals also with the legal profession and legal education. The approach throughout is geared toward an intelligent lay audience. Legal jargon is avoided. The underlying theory of the book is that law is the product of society, so that what is attempted, in essence, is a more or less sociological history of the legal system, as it evolved over the years.Less
This book is a general history of the legal system of the United States, beginning in the colonial period, and continuing up to the present. The work was originally published in 1973; this is the fourth edition, which brings the material up to date and incorporates recent research. The book covers the changing configurations of commercial law, criminal law, and family law, and the law of property; lays great stress on race relations, especially black-white relations; it deals also with the legal profession and legal education. The approach throughout is geared toward an intelligent lay audience. Legal jargon is avoided. The underlying theory of the book is that law is the product of society, so that what is attempted, in essence, is a more or less sociological history of the legal system, as it evolved over the years.
Lawrence M. Friedman
- Published in print:
- 2019
- Published Online:
- October 2019
- ISBN:
- 9780190070885
- eISBN:
- 9780190070922
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190070885.003.0026
- Subject:
- Law, Legal History
This chapter discusses changes in criminal law in the twentieth century, covering the decriminalization of sex and vice, defendants’ rights, the death penalty, and crime waves and the national ...
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This chapter discusses changes in criminal law in the twentieth century, covering the decriminalization of sex and vice, defendants’ rights, the death penalty, and crime waves and the national response. As the federal government grew in size in the twentieth century, and as the federal statute book grew along with it, a whole new array of federal crimes came into existence. Income tax evasion or fraud was one of these—it was obviously no crime at all before the federal income tax law. Every regulatory law created a new federal crime: violating the food and drug law, or stock fraud under the SEC law, or killing a black-footed ferret, under the Endangered Species Act. Under J. Edgar Hoover, the Federal Bureau of Investigation became a major crime-fighter, at least with regard to crime that crossed state lines.Less
This chapter discusses changes in criminal law in the twentieth century, covering the decriminalization of sex and vice, defendants’ rights, the death penalty, and crime waves and the national response. As the federal government grew in size in the twentieth century, and as the federal statute book grew along with it, a whole new array of federal crimes came into existence. Income tax evasion or fraud was one of these—it was obviously no crime at all before the federal income tax law. Every regulatory law created a new federal crime: violating the food and drug law, or stock fraud under the SEC law, or killing a black-footed ferret, under the Endangered Species Act. Under J. Edgar Hoover, the Federal Bureau of Investigation became a major crime-fighter, at least with regard to crime that crossed state lines.
George P. Fletcher
- Published in print:
- 2019
- Published Online:
- October 2019
- ISBN:
- 9780190903572
- eISBN:
- 9780190903602
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190903572.003.0011
- Subject:
- Law, Criminal Law and Criminology, Public International Law
This chapter discusses the distinction between accidents and mistakes. Much of the law of torts centers on negligent accidents—whether with cars, airplanes, guns, or simply walking on a slippery ...
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This chapter discusses the distinction between accidents and mistakes. Much of the law of torts centers on negligent accidents—whether with cars, airplanes, guns, or simply walking on a slippery floor. The important feature of torts, as opposed to crime, is that there is no liability absent harm to the plaintiff. For example, there is no liability for merely attempting or risking harm. In domestic criminal law, accidents become relevant only in what can be called the pattern of harmful consequences, that is, where there is a causal chain between the action and the harm. Meanwhile, according to Article 31(1) of the Rome Statute, a mistake of fact is relevant only if it negates the mental element required for the crime.Less
This chapter discusses the distinction between accidents and mistakes. Much of the law of torts centers on negligent accidents—whether with cars, airplanes, guns, or simply walking on a slippery floor. The important feature of torts, as opposed to crime, is that there is no liability absent harm to the plaintiff. For example, there is no liability for merely attempting or risking harm. In domestic criminal law, accidents become relevant only in what can be called the pattern of harmful consequences, that is, where there is a causal chain between the action and the harm. Meanwhile, according to Article 31(1) of the Rome Statute, a mistake of fact is relevant only if it negates the mental element required for the crime.
Michael Tonry (ed.)
- Published in print:
- 2019
- Published Online:
- October 2019
- ISBN:
- 9780190070595
- eISBN:
- 9780190070625
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190070595.001.0001
- Subject:
- Law, Criminal Law and Criminology, Philosophy of Law
Interest in retributive theory, and emphasis on proportionality between crime and punishment as a requirement of justice, revived in English-speaking countries in the 1970s. After less than a half ...
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Interest in retributive theory, and emphasis on proportionality between crime and punishment as a requirement of justice, revived in English-speaking countries in the 1970s. After less than a half century, however, retributivism’s influence is waning. It is beset by challenges. Some, such as difficulties in scaling crime seriousness and punishment severity, and linking them, are primarily analytical and of interest mostly to theorists. Others, such as trade-offs between proportionality and crime prevention, relate to real-world applications. Both sets of challenges can be explored in their own terms, and solutions can be sought. The bigger question, though, is whether the challenges are epiphenomenal and portend displacement of retribution as the most intellectually influential normative frame of reference for thinking about punishment. Only time will tell whether retributivism is in terminal decline. Most likely, the difficulties contemporary philosophers face are as much a reflection of a change in the zeitgeist, in prevailing sensibilities, in mentalités as of sudden realization that retributive ideas offer less guidance for thinking about punishment than was widely understood.Less
Interest in retributive theory, and emphasis on proportionality between crime and punishment as a requirement of justice, revived in English-speaking countries in the 1970s. After less than a half century, however, retributivism’s influence is waning. It is beset by challenges. Some, such as difficulties in scaling crime seriousness and punishment severity, and linking them, are primarily analytical and of interest mostly to theorists. Others, such as trade-offs between proportionality and crime prevention, relate to real-world applications. Both sets of challenges can be explored in their own terms, and solutions can be sought. The bigger question, though, is whether the challenges are epiphenomenal and portend displacement of retribution as the most intellectually influential normative frame of reference for thinking about punishment. Only time will tell whether retributivism is in terminal decline. Most likely, the difficulties contemporary philosophers face are as much a reflection of a change in the zeitgeist, in prevailing sensibilities, in mentalités as of sudden realization that retributive ideas offer less guidance for thinking about punishment than was widely understood.
Nancy Christie
- Published in print:
- 2020
- Published Online:
- February 2020
- ISBN:
- 9780198851813
- eISBN:
- 9780191886492
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198851813.003.0004
- Subject:
- History, Political History, World Modern History
Canvassing the criminal and civil courts of Quebec, this chapter uncovers the patterns of male assault, both against other men and against women, with a focus upon the ways in which quotidian social ...
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Canvassing the criminal and civil courts of Quebec, this chapter uncovers the patterns of male assault, both against other men and against women, with a focus upon the ways in which quotidian social practices defined a variety of modes of masculine behavior, which reinforced and subverted cultural codes of normative manhood built around patriarchal authority. This chapter argues that there was considerable state and non-state violence within the colony, which was used as a primary instrument by which to demarcate small differences of rank, and that while insults and assaults largely occurred within ethnic enclaves, over time these became increasingly characterized by interethnic conflict.Less
Canvassing the criminal and civil courts of Quebec, this chapter uncovers the patterns of male assault, both against other men and against women, with a focus upon the ways in which quotidian social practices defined a variety of modes of masculine behavior, which reinforced and subverted cultural codes of normative manhood built around patriarchal authority. This chapter argues that there was considerable state and non-state violence within the colony, which was used as a primary instrument by which to demarcate small differences of rank, and that while insults and assaults largely occurred within ethnic enclaves, over time these became increasingly characterized by interethnic conflict.
Stewart J. Brown
- Published in print:
- 2019
- Published Online:
- October 2019
- ISBN:
- 9780198832539
- eISBN:
- 9780191871078
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198832539.003.0002
- Subject:
- Religion, Religious Studies
As assistant editor, then editor of the Pall Mall Gazette from 1880 to 1888, W. T. Stead pioneered what became known as the ‘New Journalism’, or journalism with a mission. The chapter considers ...
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As assistant editor, then editor of the Pall Mall Gazette from 1880 to 1888, W. T. Stead pioneered what became known as the ‘New Journalism’, or journalism with a mission. The chapter considers Stead’s three major newspaper campaigns of the 1880s—for improved working-class housing, for sending General Gordon to the Sudan to achieve a just peace, and for exposing and ending child prostitution—with the latter ‘Maiden Tribute’ campaign leading to the ‘martyrdom’ of his trial and imprisonment. It also explores Stead’s involvement in the Irish land war and the ‘Bloody Sunday’ riots at London’s Trafalgar Square, and his friendship with Annie Besant. Underlying his crusading journalism were Stead’s religious beliefs, his sense of the editor’s desk as his pulpit, and of the editor as preacher and prophet, calling on people to follow the example of Christ in sacrificing self-interest and actively working for social reform and social justice.Less
As assistant editor, then editor of the Pall Mall Gazette from 1880 to 1888, W. T. Stead pioneered what became known as the ‘New Journalism’, or journalism with a mission. The chapter considers Stead’s three major newspaper campaigns of the 1880s—for improved working-class housing, for sending General Gordon to the Sudan to achieve a just peace, and for exposing and ending child prostitution—with the latter ‘Maiden Tribute’ campaign leading to the ‘martyrdom’ of his trial and imprisonment. It also explores Stead’s involvement in the Irish land war and the ‘Bloody Sunday’ riots at London’s Trafalgar Square, and his friendship with Annie Besant. Underlying his crusading journalism were Stead’s religious beliefs, his sense of the editor’s desk as his pulpit, and of the editor as preacher and prophet, calling on people to follow the example of Christ in sacrificing self-interest and actively working for social reform and social justice.
