R.A. DUFF
- Published in print:
- 2011
- Published Online:
- January 2013
- ISBN:
- 9780197264898
- eISBN:
- 9780191754074
- Item type:
- chapter
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197264898.003.0012
- Subject:
- Philosophy, Philosophy of Mind
This chapter argues that the kind of responsibility that we must have, if the enterprise of criminal law and punishment is to be consistent with the demands of justice, is something much more modest, ...
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This chapter argues that the kind of responsibility that we must have, if the enterprise of criminal law and punishment is to be consistent with the demands of justice, is something much more modest, much less metaphysically ambitious, than the ‘ultimate’ responsibility that Strawson so persuasively denies in Chapter 8. If we are to be clear about the kind of responsibility that is relevant to criminal law, we must first be clear about the criminal law itself — about the kind of enterprise that it is, about the aims that it should serve, about the principles that should structure it, and about the conditions it demands of us.Less
This chapter argues that the kind of responsibility that we must have, if the enterprise of criminal law and punishment is to be consistent with the demands of justice, is something much more modest, much less metaphysically ambitious, than the ‘ultimate’ responsibility that Strawson so persuasively denies in Chapter 8. If we are to be clear about the kind of responsibility that is relevant to criminal law, we must first be clear about the criminal law itself — about the kind of enterprise that it is, about the aims that it should serve, about the principles that should structure it, and about the conditions it demands of us.
Andrew Altman and Christopher Heath Wellman
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199564415
- eISBN:
- 9780191721434
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199564415.001.0001
- Subject:
- Political Science, Political Theory, International Relations and Politics
This book advances a novel theory of international justice that combines the orthodox liberal notion that the lives of individuals are what ultimately matter morally with the putatively antiliberal ...
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This book advances a novel theory of international justice that combines the orthodox liberal notion that the lives of individuals are what ultimately matter morally with the putatively antiliberal idea of an irreducibly collective right of self‐governance. The individual and his or her rights are placed at center stage insofar as political states are judged legitimate if they adequately protect the human rights of their constituents and respect the rights of all others. Yet, the book argues that legitimate states have a moral right to self‐determination and that this right is inherently collective, irreducible to the individual rights of the persons who constitute them. Exploring the implications of these ideas, the book addresses issues pertaining to democracy, secession, international criminal law, armed intervention, political assassination, global distributive justice, and immigration. A number of the positions taken in the book run against the grain of current academic opinion: there is no human right to democracy; separatist groups can be morally entitled to secede from legitimate states; the fact that it is a matter of brute luck whether one is born in a wealthy state or a poorer one does not mean that economic inequalities across states must be minimized or even kept within certain limits; most existing states have no right against armed intervention; and it is morally permissible for a legitimate state to exclude all would‐be immigrants.Less
This book advances a novel theory of international justice that combines the orthodox liberal notion that the lives of individuals are what ultimately matter morally with the putatively antiliberal idea of an irreducibly collective right of self‐governance. The individual and his or her rights are placed at center stage insofar as political states are judged legitimate if they adequately protect the human rights of their constituents and respect the rights of all others. Yet, the book argues that legitimate states have a moral right to self‐determination and that this right is inherently collective, irreducible to the individual rights of the persons who constitute them. Exploring the implications of these ideas, the book addresses issues pertaining to democracy, secession, international criminal law, armed intervention, political assassination, global distributive justice, and immigration. A number of the positions taken in the book run against the grain of current academic opinion: there is no human right to democracy; separatist groups can be morally entitled to secede from legitimate states; the fact that it is a matter of brute luck whether one is born in a wealthy state or a poorer one does not mean that economic inequalities across states must be minimized or even kept within certain limits; most existing states have no right against armed intervention; and it is morally permissible for a legitimate state to exclude all would‐be immigrants.
Douglas Husak
- Published in print:
- 2007
- Published Online:
- January 2008
- ISBN:
- 9780195328714
- eISBN:
- 9780199869947
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195328714.003.0002
- Subject:
- Philosophy, Moral Philosophy
This chapter argues that the criminal law itself, and especially its so‐called “general part,” is the source of four internal constraints on the authority of the state to enact and enforce penal ...
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This chapter argues that the criminal law itself, and especially its so‐called “general part,” is the source of four internal constraints on the authority of the state to enact and enforce penal offenses: crimes must be designed to proscribe a harm or evil; criminal conduct must be wrongful; persons may only be punished according to their desert; and the state must bear the burden of proof to justify a penal offense. These constraints are derived from an understanding of what the criminal law is: that body of law that subjects persons to punishment and thus implicates valuable rights. Each constraint is given a novel defense and applied to a handful of examples. In particular, these constraints create difficulties in attempts to justify many of the mala prohibita offenses that have been enacted recently.Less
This chapter argues that the criminal law itself, and especially its so‐called “general part,” is the source of four internal constraints on the authority of the state to enact and enforce penal offenses: crimes must be designed to proscribe a harm or evil; criminal conduct must be wrongful; persons may only be punished according to their desert; and the state must bear the burden of proof to justify a penal offense. These constraints are derived from an understanding of what the criminal law is: that body of law that subjects persons to punishment and thus implicates valuable rights. Each constraint is given a novel defense and applied to a handful of examples. In particular, these constraints create difficulties in attempts to justify many of the mala prohibita offenses that have been enacted recently.
Keith Smith
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199239757
- eISBN:
- 9780191705151
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199239757.003.0007
- Subject:
- Law, Legal History
This chapter discusses the general principles of criminal law. It considers common fault concepts together with the substance and structure of general defences. Criminal fault represents the most ...
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This chapter discusses the general principles of criminal law. It considers common fault concepts together with the substance and structure of general defences. Criminal fault represents the most distinctive and varied incriminatory component of liability; and, broadly, the exculpatory mechanisms of defences represent the other side of the conceptual coin. A second dimension of general principles embraces auxiliary or complementary forms of criminal liability, spanning and operating alongside specific offences; the most significant of these are inchoate liability (incitement, conspiracy, and attempt), and complicity or secondary liability. To a greater or lesser degree, all of these areas of ‘general principles’ underwent significant development in the 19th century.Less
This chapter discusses the general principles of criminal law. It considers common fault concepts together with the substance and structure of general defences. Criminal fault represents the most distinctive and varied incriminatory component of liability; and, broadly, the exculpatory mechanisms of defences represent the other side of the conceptual coin. A second dimension of general principles embraces auxiliary or complementary forms of criminal liability, spanning and operating alongside specific offences; the most significant of these are inchoate liability (incitement, conspiracy, and attempt), and complicity or secondary liability. To a greater or lesser degree, all of these areas of ‘general principles’ underwent significant development in the 19th century.
Keith Smith
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199239757
- eISBN:
- 9780191705151
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199239757.003.0006
- Subject:
- Law, Legal History
This chapter begins with a discussion of the sources of criminal law, covering the growth of criminal treatises, legislative and proto-legislative potential influential sources, and the style and ...
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This chapter begins with a discussion of the sources of criminal law, covering the growth of criminal treatises, legislative and proto-legislative potential influential sources, and the style and substance of criminal law judgments. It then discusses the reform of criminal law.Less
This chapter begins with a discussion of the sources of criminal law, covering the growth of criminal treatises, legislative and proto-legislative potential influential sources, and the style and substance of criminal law judgments. It then discusses the reform of criminal law.
Michael Moore
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199599493
- eISBN:
- 9780191594649
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199599493.003.0001
- Subject:
- Law, Philosophy of Law, Criminal Law and Criminology
This chapter develops a theory of what a theory of and area of law, criminal law included, should look like. It describes what kind of thing an area of law might be, and previews the book's ...
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This chapter develops a theory of what a theory of and area of law, criminal law included, should look like. It describes what kind of thing an area of law might be, and previews the book's conclusions as to the correct views on these matters. Three different kinds of kinds are distinguished as possible for areas of law such as criminal law: nominal kinds, natural kinds, and functional kinds. Three different kinds of theories of areas of law are also distinguished, distinguishing evaluative, explanatory, and descriptive theories. The aim of the book is then described as the attempt to give a descriptive theory of the general part of the criminal law, and a normative theory of the special part of the criminal law. The content of each of these theories is then previewed.Less
This chapter develops a theory of what a theory of and area of law, criminal law included, should look like. It describes what kind of thing an area of law might be, and previews the book's conclusions as to the correct views on these matters. Three different kinds of kinds are distinguished as possible for areas of law such as criminal law: nominal kinds, natural kinds, and functional kinds. Three different kinds of theories of areas of law are also distinguished, distinguishing evaluative, explanatory, and descriptive theories. The aim of the book is then described as the attempt to give a descriptive theory of the general part of the criminal law, and a normative theory of the special part of the criminal law. The content of each of these theories is then previewed.
Keith Smith
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199239757
- eISBN:
- 9780191705151
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199239757.003.0012
- Subject:
- Law, Legal History
This chapter discusses historical developments in the law of offences against the person. These are considered in three distinct groupings: (1) non-fatal assaults and wounding; (2) sexual offences; ...
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This chapter discusses historical developments in the law of offences against the person. These are considered in three distinct groupings: (1) non-fatal assaults and wounding; (2) sexual offences; and (3) unlawful homicide.Less
This chapter discusses historical developments in the law of offences against the person. These are considered in three distinct groupings: (1) non-fatal assaults and wounding; (2) sexual offences; and (3) unlawful homicide.
William Cornish, J Stuart Anderson, Ray Cocks, Michael Lobban, Patrick Polden, and Keith Smith
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199239757
- eISBN:
- 9780191705151
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199239757.001.0001
- Subject:
- Law, Legal History
The Oxford History of the Laws of England: Volume XIII 1820-1914 Fields of Development is one of three volumes devoted to that period of relative peace across Europe running from the ...
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The Oxford History of the Laws of England: Volume XIII 1820-1914 Fields of Development is one of three volumes devoted to that period of relative peace across Europe running from the defeat of Napoleon to the terrible war against the two Kaisers. Volume XIII takes up five subject areas — some primarily public in orientation, some private, some increasingly mixed — where, between 1820 and 1914, any original clay was substantially remoulded. The volume covers the criminal law and its techniques of detection, prosecution, and punishment; provisions for social aid in accordance with the earnest moral endeavour of Victorian thought and action; family law as it came to apply both to the interests of the propertied classes and the great body of people supported by manual labour; labour law as it faced class conflict through the demands and actions of employers and trade unions; and the development of conceptions that would protect individuals against external intrusions upon their personal lives and allow them exclusive control over the results of their intellectual endeavours. Detailed footnoting to historical sources and literature occurs in the course of the narrative. Each volume has tables of cases and of statutes covering the materials in that volume.Less
The Oxford History of the Laws of England: Volume XIII 1820-1914 Fields of Development is one of three volumes devoted to that period of relative peace across Europe running from the defeat of Napoleon to the terrible war against the two Kaisers. Volume XIII takes up five subject areas — some primarily public in orientation, some private, some increasingly mixed — where, between 1820 and 1914, any original clay was substantially remoulded. The volume covers the criminal law and its techniques of detection, prosecution, and punishment; provisions for social aid in accordance with the earnest moral endeavour of Victorian thought and action; family law as it came to apply both to the interests of the propertied classes and the great body of people supported by manual labour; labour law as it faced class conflict through the demands and actions of employers and trade unions; and the development of conceptions that would protect individuals against external intrusions upon their personal lives and allow them exclusive control over the results of their intellectual endeavours. Detailed footnoting to historical sources and literature occurs in the course of the narrative. Each volume has tables of cases and of statutes covering the materials in that volume.
Keith Smith
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199239757
- eISBN:
- 9780191705151
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199239757.003.0003
- Subject:
- Law, Legal History
This chapter shows that throughout the 19th century, significant changes occurred in the roles and personnel of law enforcement, along with a drip feed of ameliorative state measures. Such ...
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This chapter shows that throughout the 19th century, significant changes occurred in the roles and personnel of law enforcement, along with a drip feed of ameliorative state measures. Such developments took place against a background of several decades of the steady push of reformers, successfully resisted by defenders of the status quo. Aside from a victim's personal inclination and means, the likelihood of prosecution turned substantially on the attitudes and practices of local magistrates and constabulary. The period also saw fundamental changes in criminal trials on indictment, both in respect of the roles of the dramatis personae and the rules which regulated them. This was true of the judge, prosecution, and most especially the defendant. It was a process of change, in large measure wrought by the relatively small but slowly swelling ranks of lawyers participating in trials from the early 18th century, initially almost exclusively acting for the prosecution.Less
This chapter shows that throughout the 19th century, significant changes occurred in the roles and personnel of law enforcement, along with a drip feed of ameliorative state measures. Such developments took place against a background of several decades of the steady push of reformers, successfully resisted by defenders of the status quo. Aside from a victim's personal inclination and means, the likelihood of prosecution turned substantially on the attitudes and practices of local magistrates and constabulary. The period also saw fundamental changes in criminal trials on indictment, both in respect of the roles of the dramatis personae and the rules which regulated them. This was true of the judge, prosecution, and most especially the defendant. It was a process of change, in large measure wrought by the relatively small but slowly swelling ranks of lawyers participating in trials from the early 18th century, initially almost exclusively acting for the prosecution.
Andrew Altman and Christopher Heath Wellman
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199564415
- eISBN:
- 9780191721434
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199564415.003.0004
- Subject:
- Political Science, Political Theory, International Relations and Politics
The development of a system of international criminal law is especially important so that instances of widespread or systematic human rights abuses may be prosecuted before tribunals other than those ...
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The development of a system of international criminal law is especially important so that instances of widespread or systematic human rights abuses may be prosecuted before tribunals other than those of the state in which the abuses occurred. However, this chapter rejects the conventional arguments offered in support of such prosecutions. On the conventional arguments, international criminal law justifiably gains jurisdiction in cases of widespread or systematic human rights abuses because the abuses have harmful effects that spill across borders into states other than the ones in which they were perpetrated. Refugee outflows, regional economic dislocation, and other cross‐border effects provide the ground on which international jurisdiction can gain a foothold. But underlying this conventional argument is the mistaken premise that a state's sovereignty protects it from unwanted international jurisdiction unless conduct occurring within the state has harmful effects beyond the borders of the state. This obsolete, Westphalian conception is insupportable. In contrast, on account of a state's right of self‐determination developed in Chapter 2, any state in which widespread or systematic human rights violations are being perpetrated has no claim against the exercise of international criminal jurisdiction within its borders. Moreover, there is no need to restrict such jurisdiction to genocide, crimes against humanity, and other “supercrimes.” A state with an ineffective legal system that failed to adequately protect the human rights of its citizens would be open to international jurisdiction even for such “ordinary” crimes as murder and rape. Critics of international criminal law have leveled many charges, from wasteful spending to political bias, against international criminal tribunals. Some of the critics suggest that all such tribunals be abandoned and criminal justice be returned entirely to domestic jurisdiction. This chapter argues against abandoning the project of developing institutions of international criminal justice and makes the case that it is not unreasonable to hope that the International Criminal Court will one day become a reliable enforcer of some of the most fundamental human rights.Less
The development of a system of international criminal law is especially important so that instances of widespread or systematic human rights abuses may be prosecuted before tribunals other than those of the state in which the abuses occurred. However, this chapter rejects the conventional arguments offered in support of such prosecutions. On the conventional arguments, international criminal law justifiably gains jurisdiction in cases of widespread or systematic human rights abuses because the abuses have harmful effects that spill across borders into states other than the ones in which they were perpetrated. Refugee outflows, regional economic dislocation, and other cross‐border effects provide the ground on which international jurisdiction can gain a foothold. But underlying this conventional argument is the mistaken premise that a state's sovereignty protects it from unwanted international jurisdiction unless conduct occurring within the state has harmful effects beyond the borders of the state. This obsolete, Westphalian conception is insupportable. In contrast, on account of a state's right of self‐determination developed in Chapter 2, any state in which widespread or systematic human rights violations are being perpetrated has no claim against the exercise of international criminal jurisdiction within its borders. Moreover, there is no need to restrict such jurisdiction to genocide, crimes against humanity, and other “supercrimes.” A state with an ineffective legal system that failed to adequately protect the human rights of its citizens would be open to international jurisdiction even for such “ordinary” crimes as murder and rape. Critics of international criminal law have leveled many charges, from wasteful spending to political bias, against international criminal tribunals. Some of the critics suggest that all such tribunals be abandoned and criminal justice be returned entirely to domestic jurisdiction. This chapter argues against abandoning the project of developing institutions of international criminal justice and makes the case that it is not unreasonable to hope that the International Criminal Court will one day become a reliable enforcer of some of the most fundamental human rights.
John Gardner
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199239351
- eISBN:
- 9780191716959
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199239351.001.0001
- Subject:
- Law, Philosophy of Law, Criminal Law and Criminology
This book collects together a selection of John Gardner's best-known and most provocative writings on the theory of criminal law. Gardner tackles persistent and troublesome questions about the ...
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This book collects together a selection of John Gardner's best-known and most provocative writings on the theory of criminal law. Gardner tackles persistent and troublesome questions about the philosophical foundations of the criminal law. Which wrongs are suitable to be crimes and why? What are the conditions of criminal responsibility, and how do they relate to the conditions of moral responsibility? What does it take to be complicit in another's wrongdoing? Should crimes ever be excused, and if so, on what basis? How, if at all, should the criminal law adapt to conditions of social and cultural diversity? The issues raised in these essays have a significance extending beyond the law. What does it mean to be a responsible agent and why does it matter? Is my moral character only or mostly my own business? Is there a difference between being reasonable and being rational? These and many other moral problems lurk in the background of the criminal law, and the pieces in this book bring them into the foreground. Theoretical writings on the criminal law have often been dominated by a preoccupation with the justification of criminal punishment. This work is different. Although it discusses the legitimacy of criminal punishment, it proceeds on the footing that the criminal law does many important things apart from punishing people. In particular, Gardner argues that the criminal law provides an important forum for people to explain themselves. Such a forum would be important, argues Gardner, even if criminal punishment were to be abolished.Less
This book collects together a selection of John Gardner's best-known and most provocative writings on the theory of criminal law. Gardner tackles persistent and troublesome questions about the philosophical foundations of the criminal law. Which wrongs are suitable to be crimes and why? What are the conditions of criminal responsibility, and how do they relate to the conditions of moral responsibility? What does it take to be complicit in another's wrongdoing? Should crimes ever be excused, and if so, on what basis? How, if at all, should the criminal law adapt to conditions of social and cultural diversity? The issues raised in these essays have a significance extending beyond the law. What does it mean to be a responsible agent and why does it matter? Is my moral character only or mostly my own business? Is there a difference between being reasonable and being rational? These and many other moral problems lurk in the background of the criminal law, and the pieces in this book bring them into the foreground. Theoretical writings on the criminal law have often been dominated by a preoccupation with the justification of criminal punishment. This work is different. Although it discusses the legitimacy of criminal punishment, it proceeds on the footing that the criminal law does many important things apart from punishing people. In particular, Gardner argues that the criminal law provides an important forum for people to explain themselves. Such a forum would be important, argues Gardner, even if criminal punishment were to be abolished.
Mark Curthoys
- Published in print:
- 2004
- Published Online:
- January 2010
- ISBN:
- 9780199268894
- eISBN:
- 9780191708466
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199268894.001.0001
- Subject:
- History, British and Irish Modern History
This is a study of how mid-Victorian Britain and its specialist advisers, in an age of free trade and the minimal state, attempted to create a viable legal framework for trade unions and strikes. It ...
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This is a study of how mid-Victorian Britain and its specialist advisers, in an age of free trade and the minimal state, attempted to create a viable legal framework for trade unions and strikes. It traces the collapse, in the face of judicial interventions, of the regime for collective labour devised by the Liberal Tories in the 1820s, following the repeal of the Combination Acts. The new arrangements enacted in the 1870s allowed collective labour unparalleled freedoms, contended by the newly-founded Trades Union Congress. This book seeks to reinstate the view from government into an account of how the settlement was brought about, tracing the emergence of an official view — largely independent of external pressure — which favoured withdrawing the criminal law from peaceful industrial relations and allowing a virtually unrestricted freedom to combine. It reviews the impact upon the Home Office's specialist advisers of contemporary intellectual trends, such as the assaults upon classical and political economy and the historicised critiques of labour law developed by Liberal writers. The book offers an historical context for the major court decisions affecting the security of trade union funds, and the freedom to strike, while the views of the judges are integrated within the terms of a wider debate between proponents of contending views of ‘free trade’ and ‘free labour’. New evidence sheds light on the considerations which impelled governments to grant trade unions a distinctive form of legal existence, and to protect strikers from the criminal law.Less
This is a study of how mid-Victorian Britain and its specialist advisers, in an age of free trade and the minimal state, attempted to create a viable legal framework for trade unions and strikes. It traces the collapse, in the face of judicial interventions, of the regime for collective labour devised by the Liberal Tories in the 1820s, following the repeal of the Combination Acts. The new arrangements enacted in the 1870s allowed collective labour unparalleled freedoms, contended by the newly-founded Trades Union Congress. This book seeks to reinstate the view from government into an account of how the settlement was brought about, tracing the emergence of an official view — largely independent of external pressure — which favoured withdrawing the criminal law from peaceful industrial relations and allowing a virtually unrestricted freedom to combine. It reviews the impact upon the Home Office's specialist advisers of contemporary intellectual trends, such as the assaults upon classical and political economy and the historicised critiques of labour law developed by Liberal writers. The book offers an historical context for the major court decisions affecting the security of trade union funds, and the freedom to strike, while the views of the judges are integrated within the terms of a wider debate between proponents of contending views of ‘free trade’ and ‘free labour’. New evidence sheds light on the considerations which impelled governments to grant trade unions a distinctive form of legal existence, and to protect strikers from the criminal law.
Nita A. Farahany and James E. Coleman, Jr.
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780195340525
- eISBN:
- 9780199867219
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195340525.003.0007
- Subject:
- Law, Criminal Law and Criminology
This chapter discusses practitioners' attempts to use behavioral genetics and neuroscience in U.S. criminal law cases, and explores the relationship between behavioral genetics, neuroscience, and ...
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This chapter discusses practitioners' attempts to use behavioral genetics and neuroscience in U.S. criminal law cases, and explores the relationship between behavioral genetics, neuroscience, and criminal responsibility as it operates in the U.S. criminal justice system. It argues that irrespective of understanding the underlying contributions to human behavior, as a matter of criminal law theory, such evidence is unlikely to unhinge current assessments of criminal responsibility.Less
This chapter discusses practitioners' attempts to use behavioral genetics and neuroscience in U.S. criminal law cases, and explores the relationship between behavioral genetics, neuroscience, and criminal responsibility as it operates in the U.S. criminal justice system. It argues that irrespective of understanding the underlying contributions to human behavior, as a matter of criminal law theory, such evidence is unlikely to unhinge current assessments of criminal responsibility.
Shane Darcy and Joseph Powderly (eds)
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199591466
- eISBN:
- 9780191595585
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199591466.001.0001
- Subject:
- Law, Human Rights and Immigration, Public International Law
As the International Criminal Tribunals for the former Yugoslavia and Rwanda enter the final phase of their work, it is an appropriate time to reflect on the significant contribution that these ...
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As the International Criminal Tribunals for the former Yugoslavia and Rwanda enter the final phase of their work, it is an appropriate time to reflect on the significant contribution that these unique institutions have made to the development of international criminal law. Judgments issued by the ad hoc tribunals have served to clarify and elucidate key concepts and principles of international criminal law. On several occasions, this practice and jurisprudence has pushed the progressive development of this dynamic and growing branch of international law. This book examines the specific development of international criminal law by the Rwanda and Yugoslavia tribunals in the areas of sources of law, substantive crimes, criminal liability, defences, fair trial rights, and procedure. Several chapters address the theories of interpretation employed by judges at the ad hoc tribunals and the challenges presented by judicial creativity in international criminal trials. This book provides a thoughtful analysis by scholars, practitioners, and judges of the profound changes in the field that are attributable to the judicial creativity demonstrated at the International Criminal Tribunals for Rwanda and the former Yugoslavia.Less
As the International Criminal Tribunals for the former Yugoslavia and Rwanda enter the final phase of their work, it is an appropriate time to reflect on the significant contribution that these unique institutions have made to the development of international criminal law. Judgments issued by the ad hoc tribunals have served to clarify and elucidate key concepts and principles of international criminal law. On several occasions, this practice and jurisprudence has pushed the progressive development of this dynamic and growing branch of international law. This book examines the specific development of international criminal law by the Rwanda and Yugoslavia tribunals in the areas of sources of law, substantive crimes, criminal liability, defences, fair trial rights, and procedure. Several chapters address the theories of interpretation employed by judges at the ad hoc tribunals and the challenges presented by judicial creativity in international criminal trials. This book provides a thoughtful analysis by scholars, practitioners, and judges of the profound changes in the field that are attributable to the judicial creativity demonstrated at the International Criminal Tribunals for Rwanda and the former Yugoslavia.
Paul H. Robinson
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195365757
- eISBN:
- 9780199867684
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195365757.001.0001
- Subject:
- Law, Criminal Law and Criminology
The rules governing who will be punished and how much determine a society's success in two of its most fundamental functions: doing justice and protecting citizens from crime. Drawing from the ...
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The rules governing who will be punished and how much determine a society's success in two of its most fundamental functions: doing justice and protecting citizens from crime. Drawing from the existing theoretical literature and adding to it recent insights from the social sciences, this book describes the nature of the practical challenge in setting rational punishment principles, how past efforts have failed, and the alternatives that have been tried. It ultimately proposes a principle for distributing criminal liability and punishment that will be most likely to do justice and control crime. This long-awaited volume, from one of the world's leading criminal law experts, is a brilliant synthesis of social science research and legal reasoning that brings together three decades of work on criminal liability and punishment issues in a compelling line of argument that addresses all of the important issues in assessing liability and punishment.Less
The rules governing who will be punished and how much determine a society's success in two of its most fundamental functions: doing justice and protecting citizens from crime. Drawing from the existing theoretical literature and adding to it recent insights from the social sciences, this book describes the nature of the practical challenge in setting rational punishment principles, how past efforts have failed, and the alternatives that have been tried. It ultimately proposes a principle for distributing criminal liability and punishment that will be most likely to do justice and control crime. This long-awaited volume, from one of the world's leading criminal law experts, is a brilliant synthesis of social science research and legal reasoning that brings together three decades of work on criminal liability and punishment issues in a compelling line of argument that addresses all of the important issues in assessing liability and punishment.
Menno T. Kamminga and Martin Scheinin (eds)
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199565221
- eISBN:
- 9780191705281
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199565221.001.0001
- Subject:
- Law, Human Rights and Immigration, Public International Law
Traditional international law aims to protect the values and interests of states. The rapidly increasing corpus of international human rights law (including international humanitarian law and ...
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Traditional international law aims to protect the values and interests of states. The rapidly increasing corpus of international human rights law (including international humanitarian law and international criminal law) increasingly challenges the basic tenets of general international law. In order to become accepted as the law of the world community, general international law needs to reflect better the values and interests of a wider range of actors, including the individual. This book examines the impact of international human rights law on general international law. It considers areas including the structure of international obligations, the formation of customary international law, treaty law, immunities, state responsibility, and diplomatic protection. The book traces the extent to which concepts emanating from international human rights law are being incorporated by the guardians of traditional international law: the International Court of Justice and the International Law Commission.Less
Traditional international law aims to protect the values and interests of states. The rapidly increasing corpus of international human rights law (including international humanitarian law and international criminal law) increasingly challenges the basic tenets of general international law. In order to become accepted as the law of the world community, general international law needs to reflect better the values and interests of a wider range of actors, including the individual. This book examines the impact of international human rights law on general international law. It considers areas including the structure of international obligations, the formation of customary international law, treaty law, immunities, state responsibility, and diplomatic protection. The book traces the extent to which concepts emanating from international human rights law are being incorporated by the guardians of traditional international law: the International Court of Justice and the International Law Commission.
Mohamed Shahabuddeen
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780199670826
- eISBN:
- 9780191751523
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199670826.001.0001
- Subject:
- Law, Public International Law, Criminal Law and Criminology
International criminal justice has undergone rapid recent development. Since the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993, and the International ...
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International criminal justice has undergone rapid recent development. Since the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993, and the International Criminal Tribunal for Rwanda (ICTR) in the following year, the field has changed beyond recognition. The traditional immunity of presidents or heads of government, prime ministers, and other functionaries acting in an official capacity no longer prevails; the doctrine of superior orders is inapplicable except, where appropriate, as in mitigation; and the gap between international armed conflict and non-international armed conflict has closed. More generally, the bridge has been crossed between the irresponsibility of the state and the criminal responsibility of the individual. As a result, the traditional impunity of the state has practically gone. This book assesses some of the workings of the ICTY that have shaped these developments. It provides an insightful overview of the nature of this criminal court, established on behalf of the whole of the international community. It reflects on its transformation into one of the leading fora for the growth of international criminal law first-hand, offering a unique perspective on the challenges it has faced.Less
International criminal justice has undergone rapid recent development. Since the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993, and the International Criminal Tribunal for Rwanda (ICTR) in the following year, the field has changed beyond recognition. The traditional immunity of presidents or heads of government, prime ministers, and other functionaries acting in an official capacity no longer prevails; the doctrine of superior orders is inapplicable except, where appropriate, as in mitigation; and the gap between international armed conflict and non-international armed conflict has closed. More generally, the bridge has been crossed between the irresponsibility of the state and the criminal responsibility of the individual. As a result, the traditional impunity of the state has practically gone. This book assesses some of the workings of the ICTY that have shaped these developments. It provides an insightful overview of the nature of this criminal court, established on behalf of the whole of the international community. It reflects on its transformation into one of the leading fora for the growth of international criminal law first-hand, offering a unique perspective on the challenges it has faced.
Anja Seibert-Fohr
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199569328
- eISBN:
- 9780191721502
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199569328.001.0001
- Subject:
- Law, Human Rights and Immigration, Criminal Law and Criminology
Criminal punishment is increasingly regarded as a necessary element of human rights protection. There is a growing conviction at the international level that those responsible for the most serious ...
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Criminal punishment is increasingly regarded as a necessary element of human rights protection. There is a growing conviction at the international level that those responsible for the most serious crimes should not go unpunished. Though there is a wealth of legal writing on international criminal law, the question why and to what extent criminal prosecution is a necessary means of human rights protection has hardly been addressed comprehensively. This book examines the duty to prosecute serious human rights violations. It does so by exploring the concepts of impunity and amnesties, and by exposing flaws in criminal proceedings. With its survey of the relevant human rights instruments and jurisprudence, the subject of this book is placed at the interface of international criminal law and international human rights. The book analyses the rapidly growing body of human rights case law, dealing with criminalization, prosecution, and punishment of serious human rights violations. It identifies and critically examines the standards for the conduct of criminal proceedings developed by the European and Inter-American Courts of Human Rights and the UN Human Rights Committee. As the analysis reveals shortcomings in the current conceptualization of the prosecution of human rights violations, the book develops a solid theoretical framework for future jurisprudence. By evaluating the relationship between criminal law and the protection of human rights, the book elucidates not only the potential but also the limits of the role human rights law can play in the emerging concept of international criminal justice. The underlying rationale for prosecuting serious human rights violations is also relevant for post-conflict situations, in which it is often argued that criminal punishment threatens peace and reconciliation. The question how to deal with post-conflict justice under international law is a continuing theme throughout the book.Less
Criminal punishment is increasingly regarded as a necessary element of human rights protection. There is a growing conviction at the international level that those responsible for the most serious crimes should not go unpunished. Though there is a wealth of legal writing on international criminal law, the question why and to what extent criminal prosecution is a necessary means of human rights protection has hardly been addressed comprehensively. This book examines the duty to prosecute serious human rights violations. It does so by exploring the concepts of impunity and amnesties, and by exposing flaws in criminal proceedings. With its survey of the relevant human rights instruments and jurisprudence, the subject of this book is placed at the interface of international criminal law and international human rights. The book analyses the rapidly growing body of human rights case law, dealing with criminalization, prosecution, and punishment of serious human rights violations. It identifies and critically examines the standards for the conduct of criminal proceedings developed by the European and Inter-American Courts of Human Rights and the UN Human Rights Committee. As the analysis reveals shortcomings in the current conceptualization of the prosecution of human rights violations, the book develops a solid theoretical framework for future jurisprudence. By evaluating the relationship between criminal law and the protection of human rights, the book elucidates not only the potential but also the limits of the role human rights law can play in the emerging concept of international criminal justice. The underlying rationale for prosecuting serious human rights violations is also relevant for post-conflict situations, in which it is often argued that criminal punishment threatens peace and reconciliation. The question how to deal with post-conflict justice under international law is a continuing theme throughout the book.
Keith Smith
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199239757
- eISBN:
- 9780191705151
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199239757.003.0005
- Subject:
- Law, Legal History
This chapter on the institution of punishment in the 19th century begins with a discussion of considerable distance between the law's formal severity and the realities of its enforcement. The ...
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This chapter on the institution of punishment in the 19th century begins with a discussion of considerable distance between the law's formal severity and the realities of its enforcement. The immediate consequences of the huge range of capital statutes, largely of 18th-century origin, were their extensive modification by the intervention of broad discretionary mitigatory practices aimed at achieving individual justice whilst retaining general deterrence. It then discusses experiments in reform, deterrence by imprisonment, uniformity of punishment, and nationalization of prisons.Less
This chapter on the institution of punishment in the 19th century begins with a discussion of considerable distance between the law's formal severity and the realities of its enforcement. The immediate consequences of the huge range of capital statutes, largely of 18th-century origin, were their extensive modification by the intervention of broad discretionary mitigatory practices aimed at achieving individual justice whilst retaining general deterrence. It then discusses experiments in reform, deterrence by imprisonment, uniformity of punishment, and nationalization of prisons.
P. R. Glazebrook
- Published in print:
- 2003
- Published Online:
- January 2013
- ISBN:
- 9780197262788
- eISBN:
- 9780191754210
- Item type:
- chapter
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197262788.003.0021
- Subject:
- History, Historiography
Glanville Williams was an eminent jurist, specialising in criminal law, the publication of whose Criminal Law: The General Part in 1953 transformed scholarly and professional attitudes to its ...
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Glanville Williams was an eminent jurist, specialising in criminal law, the publication of whose Criminal Law: The General Part in 1953 transformed scholarly and professional attitudes to its subject. An introductory textbook for students, Learning the Law, published in 1944, has remained in print through several editions. Williams, who held four Chairs in law, including Quain Professor of Jurisprudence at University College, London and the Rouse Ball Professorship of English Law at Cambridge, was elected Fellow of the British Academy at the young age of 46. He gave support to the campaigns for the modification of the criminal law of abortion, drafting Bills in 1952, 1961, 1965 and 1966 and advising on the successful one of 1967. Obituary by P. R. Glazebrook.Less
Glanville Williams was an eminent jurist, specialising in criminal law, the publication of whose Criminal Law: The General Part in 1953 transformed scholarly and professional attitudes to its subject. An introductory textbook for students, Learning the Law, published in 1944, has remained in print through several editions. Williams, who held four Chairs in law, including Quain Professor of Jurisprudence at University College, London and the Rouse Ball Professorship of English Law at Cambridge, was elected Fellow of the British Academy at the young age of 46. He gave support to the campaigns for the modification of the criminal law of abortion, drafting Bills in 1952, 1961, 1965 and 1966 and advising on the successful one of 1967. Obituary by P. R. Glazebrook.
