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.
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.
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.
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.
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.
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.
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.
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.
R.A. Duff, Lindsay Farmer, S.E. Marshall, Massimo Renzo, and Victor Tadros (eds)
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199644315
- eISBN:
- 9780191732249
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199644315.001.0001
- Subject:
- Law, Criminal Law and Criminology, Philosophy of Law
This book is part of a series arising from an interdisciplinary investigation into the issue of criminalization, focussing on the principles and goals that should guide decisions about what kinds of ...
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This book is part of a series arising from an interdisciplinary investigation into the issue of criminalization, focussing on the principles and goals that should guide decisions about what kinds of conduct are to be criminalized, and the forms that criminalization should take. This is the second volume in the series and it concerns itself with the structures of criminal law in three different senses. The first examines the internal structure of the criminal law itself and the questions posed by familiar distinctions between which offences are typically analysed. These questions of classification include discussion of the growing range of crimes and the problems posed by this broadening of definition. Should traditional ideas and conceptions of the criminal law be reshaped in light of recent developments or should these developments be criticized and refuted? Structures of criminal law also refer to the place of the criminal law within the larger structure of the law. Here, the book examines the relationships with and between the criminal law and other aspects of law, particularly private law and public law. It also looks at how the criminal law is made, and by whom. Finally, the third sense of structure is outlined — the relationships between legal structures and social and political structures. What place does the criminal law have within the existing political and social landscapes? What are the influences, both political and social, upon the criminal law, and should they be allowed to influence the law in this fashion? What is its proper role?Less
This book is part of a series arising from an interdisciplinary investigation into the issue of criminalization, focussing on the principles and goals that should guide decisions about what kinds of conduct are to be criminalized, and the forms that criminalization should take. This is the second volume in the series and it concerns itself with the structures of criminal law in three different senses. The first examines the internal structure of the criminal law itself and the questions posed by familiar distinctions between which offences are typically analysed. These questions of classification include discussion of the growing range of crimes and the problems posed by this broadening of definition. Should traditional ideas and conceptions of the criminal law be reshaped in light of recent developments or should these developments be criticized and refuted? Structures of criminal law also refer to the place of the criminal law within the larger structure of the law. Here, the book examines the relationships with and between the criminal law and other aspects of law, particularly private law and public law. It also looks at how the criminal law is made, and by whom. Finally, the third sense of structure is outlined — the relationships between legal structures and social and political structures. What place does the criminal law have within the existing political and social landscapes? What are the influences, both political and social, upon the criminal law, and should they be allowed to influence the law in this fashion? What is its proper role?
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.
Mohamed Shahabuddeen
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199591466
- eISBN:
- 9780191595585
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199591466.003.0009
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter examines the theory of joint criminal enterprise as a form of criminal liability before the ad hoc Tribunals. It provides a comparative analysis of the competing doctrines of joint ...
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This chapter examines the theory of joint criminal enterprise as a form of criminal liability before the ad hoc Tribunals. It provides a comparative analysis of the competing doctrines of joint criminal enterprise and co-perpetratorship, and considers that neither form of criminal liability can claim the status of customary international law. The chapter looks at the mental element required for the third category of joint criminal enterprise, which can be problematic in the context of specific intent crimes. It justifies the ad hoc Tribunals' reliance on the creativity of the bench, whereby new law is fashioned on the basis of the policy of the law as can be extracted from its roots. It argues that judicial creativity can be used if there is a gap in the law which would prevent a court from dispensing justice under its constituent instrument.Less
This chapter examines the theory of joint criminal enterprise as a form of criminal liability before the ad hoc Tribunals. It provides a comparative analysis of the competing doctrines of joint criminal enterprise and co-perpetratorship, and considers that neither form of criminal liability can claim the status of customary international law. The chapter looks at the mental element required for the third category of joint criminal enterprise, which can be problematic in the context of specific intent crimes. It justifies the ad hoc Tribunals' reliance on the creativity of the bench, whereby new law is fashioned on the basis of the policy of the law as can be extracted from its roots. It argues that judicial creativity can be used if there is a gap in the law which would prevent a court from dispensing justice under its constituent instrument.
Arlie Loughnan
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199698592
- eISBN:
- 9780191738883
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199698592.003.0004
- Subject:
- Law, Criminal Law and Criminology
This chapter juxtaposes two mental incapacity doctrines — unfitness to plead and infancy — that are facially quite dissimilar, but which define, by a process of exclusion, those who can be subjected ...
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This chapter juxtaposes two mental incapacity doctrines — unfitness to plead and infancy — that are facially quite dissimilar, but which define, by a process of exclusion, those who can be subjected to criminal law process and sanctions. Although infancy is not typically incorporated into studies of mental incapacity in criminal law, its historical, conceptual, and procedural features make it a proper inclusion. It is shown that infancy and unfitness to plead have both developed along a trajectory of formalization. The chapter suggests that formalization was shaped by a deep dynamic of inclusion — whereby the scope of these mental incapacity doctrines was drawn broadly — but, more recently, has also come to be structured by a dynamic of exclusion, whereby the scope of the doctrines is more circumscribed. The change in the dynamics structuring the process of formalization itself reflects changing concerns with matters such as dangerousness. As a result of these changing concerns, in the current era, formalization of these mental incapacity doctrines is now structured by these two dynamics of inclusion and exclusion.Less
This chapter juxtaposes two mental incapacity doctrines — unfitness to plead and infancy — that are facially quite dissimilar, but which define, by a process of exclusion, those who can be subjected to criminal law process and sanctions. Although infancy is not typically incorporated into studies of mental incapacity in criminal law, its historical, conceptual, and procedural features make it a proper inclusion. It is shown that infancy and unfitness to plead have both developed along a trajectory of formalization. The chapter suggests that formalization was shaped by a deep dynamic of inclusion — whereby the scope of these mental incapacity doctrines was drawn broadly — but, more recently, has also come to be structured by a dynamic of exclusion, whereby the scope of the doctrines is more circumscribed. The change in the dynamics structuring the process of formalization itself reflects changing concerns with matters such as dangerousness. As a result of these changing concerns, in the current era, formalization of these mental incapacity doctrines is now structured by these two dynamics of inclusion and exclusion.
Peter Ramsay
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780199581061
- eISBN:
- 9780191741005
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199581061.001.0001
- Subject:
- Law, Criminal Law and Criminology
This book presents a theory of the recent emergence of a right to security and of its protection by the criminal law in the UK. It states that the protection of such a right makes sense of the ...
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This book presents a theory of the recent emergence of a right to security and of its protection by the criminal law in the UK. It states that the protection of such a right makes sense of the liabilities found in much of the expansive criminal legislation enacted under that government. This book identifies the normative source of the right to security in the idea of vulnerable autonomy. It demonstrates that this idea is axiomatic to political theories that have enjoyed a preponderant influence across the political mainstream, well beyond the ranks of the Labour government. It considers the continuing influence of these normative commitments on the Coalition government's policy. The book explores how the contemporary criminal law's institutionalization of a right to security differs from the law's earlier protection of security interests. It exposes the paradox presented by laws that declare their own lack of authority by threatening punishments that are justified on the assumption that the normal condition of the representative subject of law is one of feeling vulnerable to criminal victimization. The book presents unorthodox criminal law theory in two respects. First, it offers an explanatory political sociology of a contemporary trend in the criminal law's ‘special part’ rather than a philosophical treatment of the law's general principles. Second, rather than applying a pre-existing sociological or philosophical theory to the law, it develops its theoretical explanation from a detailed legal analysis and reconstruction of New Labour's flagship criminal justice policy, the Anti-Social Behaviour Order.Less
This book presents a theory of the recent emergence of a right to security and of its protection by the criminal law in the UK. It states that the protection of such a right makes sense of the liabilities found in much of the expansive criminal legislation enacted under that government. This book identifies the normative source of the right to security in the idea of vulnerable autonomy. It demonstrates that this idea is axiomatic to political theories that have enjoyed a preponderant influence across the political mainstream, well beyond the ranks of the Labour government. It considers the continuing influence of these normative commitments on the Coalition government's policy. The book explores how the contemporary criminal law's institutionalization of a right to security differs from the law's earlier protection of security interests. It exposes the paradox presented by laws that declare their own lack of authority by threatening punishments that are justified on the assumption that the normal condition of the representative subject of law is one of feeling vulnerable to criminal victimization. The book presents unorthodox criminal law theory in two respects. First, it offers an explanatory political sociology of a contemporary trend in the criminal law's ‘special part’ rather than a philosophical treatment of the law's general principles. Second, rather than applying a pre-existing sociological or philosophical theory to the law, it develops its theoretical explanation from a detailed legal analysis and reconstruction of New Labour's flagship criminal justice policy, the Anti-Social Behaviour Order.
Caroline Fournet
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199591466
- eISBN:
- 9780191595585
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199591466.003.0011
- Subject:
- Law, Human Rights and Immigration, Public International Law
While necessarily central to the efficacy and legitimacy of international criminal justice, the law relating to the permissible defences is yet to be definitively codified. The Statutes of both the ...
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While necessarily central to the efficacy and legitimacy of international criminal justice, the law relating to the permissible defences is yet to be definitively codified. The Statutes of both the Yugoslavia and Rwanda Tribunals are ambiguous as to the defences that may be raised with such questions being left to the discretion of the bench. This chapter looks at the manner in which the ICTY and ICTR have gone about developing the law of defences in the international criminal context. It looks at issues including the use of the principle of legality as a defence ‘of sorts’, while looking at more traditionally identifiable defences such superior orders, duress, mental incapacity, self-defence, and tu quoque. It is clear that in the absence of any clear guidelines the ad hoc Tribunals have had at times to engage in creative judicial interpretation on the question of defences.Less
While necessarily central to the efficacy and legitimacy of international criminal justice, the law relating to the permissible defences is yet to be definitively codified. The Statutes of both the Yugoslavia and Rwanda Tribunals are ambiguous as to the defences that may be raised with such questions being left to the discretion of the bench. This chapter looks at the manner in which the ICTY and ICTR have gone about developing the law of defences in the international criminal context. It looks at issues including the use of the principle of legality as a defence ‘of sorts’, while looking at more traditionally identifiable defences such superior orders, duress, mental incapacity, self-defence, and tu quoque. It is clear that in the absence of any clear guidelines the ad hoc Tribunals have had at times to engage in creative judicial interpretation on the question of defences.
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/9780199239757.003.0001
- Subject:
- Law, Legal History
This chapter presents an overview of the criminal justice system during the early 19th century. Stark mismatches became increasingly identifiable between evolving social and political expectations ...
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This chapter presents an overview of the criminal justice system during the early 19th century. Stark mismatches became increasingly identifiable between evolving social and political expectations and the capacity of the criminal justice system to meet such expectations. Urbanization, often accompanied by social dislocation, generated widespread perceptions of relentlessly rising rates of crime, a belief bolstered by the early deployment of officially produced criminal statistics. Concerns over the ability of a formally severe punishment regime, and most especially the capital threat and transportation, to suppress a vast range of criminality soon broadened into official scrutiny of the whole loose structure of prosecution and punishment. Increasing general pressure and willingness to resolve social problems through some state agency was manifest in some, but not all, areas of the criminal justice system. As for the criminal law itself, a combination of judicial resistance and parliamentary indifference thwarted sustained attempts at fundamentally reshaping both its form and much of its substance.Less
This chapter presents an overview of the criminal justice system during the early 19th century. Stark mismatches became increasingly identifiable between evolving social and political expectations and the capacity of the criminal justice system to meet such expectations. Urbanization, often accompanied by social dislocation, generated widespread perceptions of relentlessly rising rates of crime, a belief bolstered by the early deployment of officially produced criminal statistics. Concerns over the ability of a formally severe punishment regime, and most especially the capital threat and transportation, to suppress a vast range of criminality soon broadened into official scrutiny of the whole loose structure of prosecution and punishment. Increasing general pressure and willingness to resolve social problems through some state agency was manifest in some, but not all, areas of the criminal justice system. As for the criminal law itself, a combination of judicial resistance and parliamentary indifference thwarted sustained attempts at fundamentally reshaping both its form and much of its substance.
