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The Right to Security Beyond the ASBO

Peter Ramsay

in The Insecurity State: Vulnerable Autonomy and the Right to Security in the Criminal Law

This chapter reviews the protection of a right to security by the wider criminal legislation enacted by successive New Labour governments. It includes in turn the other Civil Preventive Orders that ... More

This chapter reviews the protection of a right to security by the wider criminal legislation enacted by successive New Labour governments. It includes in turn the other Civil Preventive Orders that share the form of the Anti-Social Behaviour Order (ASBO); the Vetting and Barring Scheme (enacted by New Labour but significantly scaled back by the Coalition); various pre-inchoate offences of preparation, possession, and failure to report; three classic complete criminal offences that have acquired or moved towards a preinchoate form in recent years — fraud, theft and assault; and imprisonment for public protection, a sentencing power (largely abandoned by the Coalition). The chapter is aims simply to demonstrate that the ASBO was indeed the flagship of a fleet of measures punishing the undermining of the public's feeling of security.Less

Civil Order and the Public Realm

R A Duff

in The Realm of Criminal Law

This chapter offers an account of the practice of civic life: of the ‘public realm’, within which criminal law operates as public law. ‘Civil order’, the normative ordering of the polity’s life, is ... More

This chapter offers an account of the practice of civic life: of the ‘public realm’, within which criminal law operates as public law. ‘Civil order’, the normative ordering of the polity’s life, is central to this public realm: it is structured by the values through which a polity constitutes itself; it can be partly defined by a written constitution, but is also implicit in the polity’s institutions and practices. A conception of civil order depends on a normative distinction between the ‘public’ and the ‘private’: we must attend to different public–private distinctions. We must also attend to the preconditions of civil order: what kinds of shared understanding are necessary; what can be said to dissenters? Given a conception of a polity’s civil order, and its public realm, we can understand a ‘public wrong’ as a wrong that falls within that public realm, and violates that civil order.Less

Civil Preventive Orders

Andrew Ashworth and Lucia Zedner

in Preventive Justice

Resort to civil measures for dealing with harms and potential harms is now common. This chapter examines, in particular, civil preventive orders which are coercive and maps the range of civil ... More

Resort to civil measures for dealing with harms and potential harms is now common. This chapter examines, in particular, civil preventive orders which are coercive and maps the range of civil preventive orders now in use. It focuses particularly on the best known of these, the Anti-Social Behaviour Order (ASBO), and the measures that will replace it. The chapter examines the rationales for introducing these civil preventive orders into English law, and raises a number of objections to the legal form, use of civil procedure, breadth, proportionality, and application of the civil preventive order, as well as to the punitive sanctions applicable for breach of the order. The chapter goes on to formulate restraining principles for civil preventive orders.Less

Securing Civil Order

Lindsay Farmer

in Making the Modern Criminal Law: Criminalization and Civil Order

The chapter develops the argument that the aim of the criminal law can be understood as that of securing civil order. It examines three overlapping themes. The first is the relation between law and ... More

The chapter develops the argument that the aim of the criminal law can be understood as that of securing civil order. It examines three overlapping themes. The first is the relation between law and civil order. This distinguishes between social order and civil order, and argues that civil order must be understood in terms of the development of the state and the rule of law. The second is the understanding of the criminal law as an instrument and index of civilization. This explores the link between the ‘civilizing process’ and understandings of criminalization. The third looks at the relation between criminal law and civility in the sense of understandings of rules of public and private conduct. Together these form the conceptual framework within which criminalization has come to be understood.Less

A Liberal Republic and its Criminal Law

R A Duff

in The Realm of Criminal Law

This chapter puts some flesh on Chapter 4’s formal account of civil order, by sketching the civil order of a liberal republic, drawing on the republican tradition of political thought. We can then ... More

This chapter puts some flesh on Chapter 4’s formal account of civil order, by sketching the civil order of a liberal republic, drawing on the republican tradition of political thought. We can then see the role that criminal law can play in such a polity: as an appropriate way of marking and responding to public wrongs, it helps to sustain, and constitute, the civil order. Its central role is to provide formal declarations of the central norms of that civil order, defining what kinds of conduct citizens are entitled to expect from each other (and from the polity); and to provide the process through which those accused of violating these norms are called to public account. On this account, criminal punishment is not the primary purpose of criminal law: but given the salience of punishment in our criminal law, something must be said about its role in a liberal republic.Less

Domestic Violenceand Stalking: A Nation’s Reform

Carol E. Jordan

in Violence against Women in Kentucky: A History of U.S. and State Legislative Reform

Chapter 4 provides a history of legislative reforms related to domestic violence and stalking. The push to reform these laws did not begin with the courts whose opinions formed the law, the police ... More

Chapter 4 provides a history of legislative reforms related to domestic violence and stalking. The push to reform these laws did not begin with the courts whose opinions formed the law, the police who enforced it, or the attorneys who prosecuted it. Rather, it was an outgrowth of the women’s movement of the 1970s. Feminist advocates challenged the concept of family privacy and forced the perpetration of violence against women onto the nation’s collective consciousness. The chapter focuses on English common law and the way it influenced statutes in America, including concepts of chastisement and the “rule of thumb.” Chapter 4 describes reforms relating to police, prosecutors, and the courts, and it discusses cases involving “failure to protect,” mandatory arrest, mandatory prosecution, and reforms ranging from domestic violence courts to victim advocacy. The chapter also examines mandatory reporting laws and describes the history of civil protective orders.Less

Legislative Reform: 2000 through 2012

Carol E. Jordan

in Violence against Women in Kentucky: A History of U.S. and State Legislative Reform

Chapter 9 outlines the legislative reforms that took place in Kentucky from 2000 through 2012. It begins by describing the events that held the attention of the Commonwealth’s citizens during the ... More

Chapter 9 outlines the legislative reforms that took place in Kentucky from 2000 through 2012. It begins by describing the events that held the attention of the Commonwealth’s citizens during the decade and provides a history of the political landscape of the time. The chapter highlights the major reforms of the 2000s, including legislation related to family courts, racial profiling by law enforcement officers, the restoration of civil rights for convicted felons, and reform of Kentucky’s juvenile justice system. Chapter 9 provides an overview of reforms in the area of domestic violence and rape, including stricter sexual offense statutes, victim notification, a civil right of action for stalking victims, the statutory establishment of rape crisis centers, additional marital rape reforms, victim notification of respondents’ attempts to purchase firearms, and use of global positioning devices with domestic violence offenders.Less

Separation

Leigh Goodmark

in A Troubled Marriage: Domestic Violence and the Legal System

This chapter examines the normative preference for separation-based domestic violence law and policy: the assumption that women should and want to separate from their abusive partners and that they ... More

This chapter examines the normative preference for separation-based domestic violence law and policy: the assumption that women should and want to separate from their abusive partners and that they will separate from their partners given the opportunity to do so. Separation is equated with successful termination of violence, a relationship that has oriented domestic violence law and policy since the early days of the battered women's movement. The focus on separation owes its preeminent position to psychologist Lenore Walker and the theory of learned helplessness. The chapter first notes the distinction between separation—the act of leaving an abusive partner—and separation-based remedies. It then discusses the risks of separation, along with the effectiveness of various separation-based remedies such as arrest, prosecution, criminal stay-away orders, civil protective orders, and divorce. It argues that there is paucity of assistance available to women who choose to remain in relationships with abusive men. Finally, it assesses the U Visa program as an example of a problematic separation-based policy choice.Less

Legislative Reform: The 1990s

Carol E. Jordan

in Violence against Women in Kentucky: A History of U.S. and State Legislative Reform

Chapter 8 outlines the legislative reforms that took place in Kentucky during the decade of the 1990s. It begins by describing the events that held the attention of the Commonwealth’s citizens during ... More

Chapter 8 outlines the legislative reforms that took place in Kentucky during the decade of the 1990s. It begins by describing the events that held the attention of the Commonwealth’s citizens during the decade and provides a history of the political landscape of the time. The chapter highlights the major reforms of the 1990s, including passage of the Kentucky Education Reform Act (KERA), postsecondary education reform, workers’ compensation, and a constitutional amendment to allow gubernatorial succession. The chapter provides an overview of reforms in the area of domestic violence and rape, including substantial increases in funding for rape crisis centers and domestic violence shelters and passage of legislation related to marital rape, rape with a foreign object, sexual assault nurse examiners, creation of a domestic violence file in the Law Information Network of Kentucky (LINK), civil protective orders, self-defense for domestic violence victims, stalking, sex offender registry, victim advocates, victim notification, and child witnesses to domestic violence.Less

4 Separation

Leigh Goodmark

in A Troubled Marriage: Domestic Violence and the Legal System

This chapter examines the normative preference for separation-based domestic violence law and policy: the assumption that women should and want to separate from their abusive partners and that they ... More

This chapter examines the normative preference for separation-based domestic violence law and policy: the assumption that women should and want to separate from their abusive partners and that they will separate from their partners given the opportunity to do so. Separation is equated with successful termination of violence, a relationship that has oriented domestic violence law and policy since the early days of the battered women's movement. The focus on separation owes its preeminent position to psychologist Lenore Walker and the theory of learned helplessness. The chapter first notes the distinction between separation—the act of leaving an abusive partner—and separation-based remedies. It then discusses the risks of separation, along with the effectiveness of various separation-based remedies such as arrest, prosecution, criminal stay-away orders, civil protective orders, and divorce. It argues that there is paucity of assistance available to women who choose to remain in relationships with abusive men. Finally, it assesses the U Visa program as an example of a problematic separation-based policy choice. Less

The Persistence of Criminal Law and Police in Collective Labour Relations

Alan Bogg, KD Ewing, and Andrew Moretta

in Criminality at Work

This chapter examines the role of criminal law and police power in regulating and restricting collective labour activities. In so doing, it challenges the dominant view that the historical ... More

This chapter examines the role of criminal law and police power in regulating and restricting collective labour activities. In so doing, it challenges the dominant view that the historical development of collective labour law involved the progressive withdrawal of criminal law from trade union affairs. The chapter draws upon sociologically and historically based accounts of criminal law to examine the development of collective labour relations across different historical periods. It argues that a wider framing of criminal law interventions, to include discretionary ‘police’ measures, reveals a much more persistent presence for criminal law as a mode of repression and control. This has been most pronounced during periods of ‘emergency’, such as the general strike, wartime, and the miners’ strike during the mid-1980s. More recently, the chapter suggests that there has been a ‘normalization’ of emergency, with the radical trade unionist emerging as a new dangerous status that is the object of covert state surveillance and disciplinary control.Less

“Becoming Visible”: Italian Women and Their Male Co-Citizens in the Liberal State

Sabina Donati (ed.)

in A Political History of National Citizenship and Identity in Italy, 1861-1950

“Becoming Visible”: Italian Women and Their Male Co-Citizens in the Liberal State

Legal System Reform

Leigh Goodmark

in Transgender Intimate Partner Violence: A Comprehensive Introduction

Historically, intimate partner violence (IPV) laws were limited, gendered, and cisnormative. While legal recourse for transgender people has evolved over recent decades, there is room for the legal ... More

Historically, intimate partner violence (IPV) laws were limited, gendered, and cisnormative. While legal recourse for transgender people has evolved over recent decades, there is room for the legal system to improve its response to IPV against transgender people. Legal system actors, including police, judges, lawyers, and court staff, often harbor conscious and unconscious biases against transgender people. The law also can limit the relief available to transgender people. To address these problems, the substantive law—the statutes and cases that govern legal practice—should include various relationship structures and utilize gender-neutral language. Equally important, police, judges, lawyers, and court staff must be attentive to the unique issues raised when transgender people seek protection (e.g., civil protection orders), including proper name usage, properly gendering litigants, and understanding how using misgendered documentation can further complicate cases of IPV. This chapter discusses these issues and suggests how the courts and legal system can better respond to transgender survivors of IPV.Less

Conclusion: Criminalization and Civil Order

Lindsay Farmer

in Making the Modern Criminal Law: Criminalization and Civil Order

This chapter argues that the historical account of criminalization developed in the book allows us to ground an account of the criminal law as a coherent whole. The book has argued that the modern ... More

This chapter argues that the historical account of criminalization developed in the book allows us to ground an account of the criminal law as a coherent whole. The book has argued that the modern criminal law has been shaped by the broad aim of securing civil order.This chapter reviews some of the ways that this idea can help to make intelligible the development and scope of the modern law,providing an institutional framework through which we can understand the ways in which the criminal law has been used, the development of the legal form, and the normative horizons within which the modern law operates. The conclusion argues that this account consequently poses challenges for normative theories of criminalization.Less

The Institution of Criminal Law

Lindsay Farmer

in Making the Modern Criminal Law: Criminalization and Civil Order

This chapter argues for an institutional approach to understanding criminal law. In the first part there is a discussion of different theories of criminalization, which develops the claim that there ... More

This chapter argues for an institutional approach to understanding criminal law. In the first part there is a discussion of different theories of criminalization, which develops the claim that there has been a failure on the part of such theories to attend to the purpose or function of the criminal law. The second sets out an understanding of criminal law as an institution, as a framework that can combine a normative perspective on issues of criminalization with a richer understanding of the purpose and function of the criminal law. The third then looks at the question of how this account, which gives more weight to the purpose and function of the modern criminal law, might contribute to normative theories of criminalization.Less

Conclusion: “Words Made Visible” and the Turn against Rhetoric

Jenny C. Mann

in Outlaw Rhetoric: Figuring Vernacular Eloquence in Shakespeare's England

This book concludes with a discussion of rhetoric's apparent demise in early modern Europe. It begins with an analysis of Cicero's myth of the orator and how it provided one of the enabling fictions ... More

This book concludes with a discussion of rhetoric's apparent demise in early modern Europe. It begins with an analysis of Cicero's myth of the orator and how it provided one of the enabling fictions not only of Renaissance humanism but also of the particular form of vernacular humanism articulated by sixteenth-century English writers. It then considers the relationship between civil order and rhetoric and how rhetoric's civilizing mission acquired a specific purpose in the manuals of rhetoric in English: the transformation of the English people from a savage and barbaric condition to a settled and orderly community, clothed and housed by the art of rhetoric. It also discusses the different circumstances in which rhetoric found itself at the end of the seventeenth century. Finally, it examines Samuel Shaw's play Words Made Visible; or, Rhetorick Accommodated to the Lives and Manners of Men (1679), in which the tropes and figures of speech are the principal actors, to highlight the disrepute into which rhetoric has fallen at the end of the seventeenth century.Less

The Preventive Role of the Criminal Law in Employment Relations

Jennifer Collins and Andrew Ashworth

in Criminality at Work

This chapter assesses the range of preventive interventions in labour market regulation. In relation to preventive orders in labour market enforcement, the chapter queries whether there are good ... More

This chapter assesses the range of preventive interventions in labour market regulation. In relation to preventive orders in labour market enforcement, the chapter queries whether there are good reasons to resort to criminal law in situations where civil enforcement mechanisms might be improved. This also raises uncomfortable questions of a government that has presided over onerous tribunal fees impeding access to justice, and the pursuit of deregulation of labour standards and restriction of trade unions. The chapter considers whether the enforcement crisis is being produced by ‘bad’ employers or by the political choices of our elected representatives. The most effective form of prevention would be worker-protective labour law, supported by access to justice and strong trade unions. Preventive criminal law is a response to an avoidable crisis that has been brought about by specific political choices. Nevertheless, the penetration of these preventive orders into labour law fits with the more general expansion of preventive criminal measures in different spheres of social life.Less