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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 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

“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

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

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

Criminal Subjectivity and Socio-Political Imagination

Henrique Carvalho

in The Preventive Turn in Criminal Law

This chapter explores the main conceptual building blocks for a reconceptualization of the subject of criminal law and its role in the process of criminalization. It focuses mainly on an examination ... More

This chapter explores the main conceptual building blocks for a reconceptualization of the subject of criminal law and its role in the process of criminalization. It focuses mainly on an examination of how the criminal law and its subject are intrinsically related to how liberal societies are imagined, and how these images are in turn linked to a specific conceptual context and history. The chapter investigates the links between criminal law and notions such as citizenship and civilization, and the role of criminal law in the maintenance of civil order. It also presents the core of what is the main argument of the book, namely, that the subject of criminal law is intrinsically ambivalent, torn between the notions of responsibility and dangerousness.Less

United Kingdom

Stuart H. Deming

in Anti-Bribery Laws in Common Law Jurisdictions

In perfecting its implementation of the OECD Convention, the UK Bribery Act replaced the United Kingdom's existing bribery offenses with a specific offense of bribery of foreign public officials and ... More

In perfecting its implementation of the OECD Convention, the UK Bribery Act replaced the United Kingdom's existing bribery offenses with a specific offense of bribery of foreign public officials and a general bribery offense that covers bribery of domestic and foreign public officials as well as persons in the private sector. Of particular significance is its establishment of a new strict liability offense for the failure of commercial organizations to prevent bribery and the issuance of guidance for commercial organizations (Bribery Act guidance) relating to the establishment of adequate compliance programs. Reliance upon civil recovery orders and new legislation providing for deferred prosecution agreements will increasingly facilitate resolution of investigations. The Proceeds of Crime Act (POCA) for money laundering, the Companies Act and their requirements for record-keeping practices, and the Financial Control Authority's guidelines for adequate internal controls increasing play an important role as part of the United Kingdom's anti-bribery regulatory scheme.Less

Information Revolution and Administrative Reform, Ca. 1845–1868

Ian W. Campbell

in Knowledge and the Ends of Empire: Kazak Intermediaries and Russian Rule on the Steppe, 1731-1917

This chapter examines the state of tsarist knowledge by the mid-1860s and compares it with administrative reform as actually practiced on the Kazak steppe. To this end, the chapter analyzes the ... More

This chapter examines the state of tsarist knowledge by the mid-1860s and compares it with administrative reform as actually practiced on the Kazak steppe. To this end, the chapter analyzes the intellectual world in which the Steppe Commission operated. The Steppe Commission was formed to collect as much information about the Kazak steppe as possible, to be used in the formulation of a new governing statute. The chapter also considers the role played by the Imperial Russian Geographical Society (IRGO) in the Russian Empire's apparatus of knowledge production; the question of whether the Kazak steppe should permanently remain a borderland apart or could ultimately progress to grazhdanstvennost', or “civil order”; the knowledge potential reformers had with respect to Islam in the region; and the Provisional Statute of 1868.Less