John H. Langbein
- Published in print:
- 2005
- Published Online:
- January 2010
- ISBN:
- 9780199287239
- eISBN:
- 9780191718137
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199287239.003.0001
- Subject:
- Law, Criminal Law and Criminology, Legal History
This chapter describes the trial procedure in cases of serious crime, which took shape in England in the 16th and 17th centuries. Lawyers for prosecution and defense played virtually no role. Defense ...
More
This chapter describes the trial procedure in cases of serious crime, which took shape in England in the 16th and 17th centuries. Lawyers for prosecution and defense played virtually no role. Defense counsel was forbidden, and prosecution counsel was seldom used. The contemporary legal literature offered many supposed justifications for the rule forbidding defense counsel, which the chapter explores. Trial took the form of an ‘altercation’ between the accusers (the victim and any other witnesses) and the accused. The main purpose of the criminal trial was to hear the defendant respond in person to the accusing evidence. Contemporaries appear not to have understood how severely the procedure of the time disadvantaged the accused.Less
This chapter describes the trial procedure in cases of serious crime, which took shape in England in the 16th and 17th centuries. Lawyers for prosecution and defense played virtually no role. Defense counsel was forbidden, and prosecution counsel was seldom used. The contemporary legal literature offered many supposed justifications for the rule forbidding defense counsel, which the chapter explores. Trial took the form of an ‘altercation’ between the accusers (the victim and any other witnesses) and the accused. The main purpose of the criminal trial was to hear the defendant respond in person to the accusing evidence. Contemporaries appear not to have understood how severely the procedure of the time disadvantaged the accused.
John H. Langbein
- Published in print:
- 2005
- Published Online:
- January 2010
- ISBN:
- 9780199287239
- eISBN:
- 9780191718137
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199287239.003.0005
- Subject:
- Law, Criminal Law and Criminology, Legal History
The judges attempted to admit defense counsel at trial for the limited purpose of assisting the defendant to probe accusing evidence, expecting that the defendant would otherwise continue to speak in ...
More
The judges attempted to admit defense counsel at trial for the limited purpose of assisting the defendant to probe accusing evidence, expecting that the defendant would otherwise continue to speak in his or her own defense. By articulating and pressing for the enforcement of the prosecutorial burdens of production and proof, defense counsel largely silenced the defendant, leading to the beyond-reasonable-doubt standard of proof, and the privilege against self-incrimination. The adversary dynamic changed the very theory of the criminal trial. Whereas the old altercation trial had been understood as an opportunity for the accused to speak in person to the charges and the evidence against him, adversary criminal trial became an opportunity for defense counsel to test the prosecution case.Less
The judges attempted to admit defense counsel at trial for the limited purpose of assisting the defendant to probe accusing evidence, expecting that the defendant would otherwise continue to speak in his or her own defense. By articulating and pressing for the enforcement of the prosecutorial burdens of production and proof, defense counsel largely silenced the defendant, leading to the beyond-reasonable-doubt standard of proof, and the privilege against self-incrimination. The adversary dynamic changed the very theory of the criminal trial. Whereas the old altercation trial had been understood as an opportunity for the accused to speak in person to the charges and the evidence against him, adversary criminal trial became an opportunity for defense counsel to test the prosecution case.
Ulinka Rublack
- Published in print:
- 2001
- Published Online:
- October 2011
- ISBN:
- 9780198208860
- eISBN:
- 9780191678165
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198208860.001.0001
- Subject:
- History, European Early Modern History
This book studies ‘deviant’ women. It presents an account of how women were prosecuted for theft, infanticide, and sexual crimes in early modern Germany, and challenges the assumption that women were ...
More
This book studies ‘deviant’ women. It presents an account of how women were prosecuted for theft, infanticide, and sexual crimes in early modern Germany, and challenges the assumption that women were treated more leniently than men. The book uses criminal trials to illuminate the social status and conflicts of women living through the Reformation and Thirty Years War, telling, for the first time, the stories of cutpurses, maidservants' dangerous liaisons, and artisans' troubled marriages. It provides a thought-provoking analysis of labeling and sentencing processes, and of the punishments inflicted on those found guilty. Above all, the author engages with the way ‘ordinary’ women experienced authority and sexuality, household and community.Less
This book studies ‘deviant’ women. It presents an account of how women were prosecuted for theft, infanticide, and sexual crimes in early modern Germany, and challenges the assumption that women were treated more leniently than men. The book uses criminal trials to illuminate the social status and conflicts of women living through the Reformation and Thirty Years War, telling, for the first time, the stories of cutpurses, maidservants' dangerous liaisons, and artisans' troubled marriages. It provides a thought-provoking analysis of labeling and sentencing processes, and of the punishments inflicted on those found guilty. Above all, the author engages with the way ‘ordinary’ women experienced authority and sexuality, household and community.
John H. Langbein
- Published in print:
- 2005
- Published Online:
- January 2010
- ISBN:
- 9780199287239
- eISBN:
- 9780191718137
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199287239.003.0003
- Subject:
- Law, Criminal Law and Criminology, Legal History
In the 1730s, English judges began to depart from the rule against defense counsel in cases of felony, by allowing counsel to examine and cross-examine witnesses. This change in practice effectively ...
More
In the 1730s, English judges began to depart from the rule against defense counsel in cases of felony, by allowing counsel to examine and cross-examine witnesses. This change in practice effectively extended adversary procedure from treason to ordinary felony. The judges acted in response to a series of innovations in prosecutorial practice which had eroded the older notion of the trial as a lawyer-free altercation between accuser and accused. These prosecutorial developments included the reward system, commencing in the 1690s, which offered huge bounties to encourage the prosecution of certain serious property crimes, at the risk of inducing false witnesses; the crown witness system for obtaining accomplice evidence in gang crimes, which created further incentives for perjured testimony; and the growing use of prosecution lawyers (especially among institutional prosecutors such as the Mint and the Bank of England) to investigate and prosecute criminal cases.Less
In the 1730s, English judges began to depart from the rule against defense counsel in cases of felony, by allowing counsel to examine and cross-examine witnesses. This change in practice effectively extended adversary procedure from treason to ordinary felony. The judges acted in response to a series of innovations in prosecutorial practice which had eroded the older notion of the trial as a lawyer-free altercation between accuser and accused. These prosecutorial developments included the reward system, commencing in the 1690s, which offered huge bounties to encourage the prosecution of certain serious property crimes, at the risk of inducing false witnesses; the crown witness system for obtaining accomplice evidence in gang crimes, which created further incentives for perjured testimony; and the growing use of prosecution lawyers (especially among institutional prosecutors such as the Mint and the Bank of England) to investigate and prosecute criminal cases.
John D. Jackson, Katie Quinn, and Tom O' Malley
- Published in print:
- 2000
- Published Online:
- January 2010
- ISBN:
- 9780198298564
- eISBN:
- 9780191705236
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198298564.003.0008
- Subject:
- Law, Comparative Law, Legal Profession and Ethics
This chapter focuses on the distinctive features of criminal trial by jury in Ireland, both north and south, to explain how the jury continues to survive in Northern Ireland, and how it has managed ...
More
This chapter focuses on the distinctive features of criminal trial by jury in Ireland, both north and south, to explain how the jury continues to survive in Northern Ireland, and how it has managed to decline in significance. It argues that the future of the jury system remains bleak unless greater steps are taken to build confidence in its ability to render verdicts which are just and reliable, and attune it more to the needs of the modern Irish criminal justice system.Less
This chapter focuses on the distinctive features of criminal trial by jury in Ireland, both north and south, to explain how the jury continues to survive in Northern Ireland, and how it has managed to decline in significance. It argues that the future of the jury system remains bleak unless greater steps are taken to build confidence in its ability to render verdicts which are just and reliable, and attune it more to the needs of the modern Irish criminal justice system.
Neil Cameron, Susan Potter, and Warren Young
- Published in print:
- 2000
- Published Online:
- January 2010
- ISBN:
- 9780198298564
- eISBN:
- 9780191705236
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198298564.003.0005
- Subject:
- Law, Comparative Law, Legal Profession and Ethics
This chapter focuses on the jury system in New Zealand. Topics discussed include the history of jury trial in New Zealand, the availability of jury trial, juror selection in criminal trials, jury ...
More
This chapter focuses on the jury system in New Zealand. Topics discussed include the history of jury trial in New Zealand, the availability of jury trial, juror selection in criminal trials, jury secrecy and the inscrutability of jury verdicts, and the jury trial process.Less
This chapter focuses on the jury system in New Zealand. Topics discussed include the history of jury trial in New Zealand, the availability of jury trial, juror selection in criminal trials, jury secrecy and the inscrutability of jury verdicts, and the jury trial process.
Neil Vidmar
- Published in print:
- 2000
- Published Online:
- January 2010
- ISBN:
- 9780198298564
- eISBN:
- 9780191705236
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198298564.003.0006
- Subject:
- Law, Comparative Law, Legal Profession and Ethics
This chapter discusses the history of the Canadian jury and develops a profile of the Canadian jury today. It argues that the Canadian system is both conservative and progressive. It exhibits ...
More
This chapter discusses the history of the Canadian jury and develops a profile of the Canadian jury today. It argues that the Canadian system is both conservative and progressive. It exhibits conservative elements of an earlier age regarding judicial control over the trial process. On the other hand, there are trends in its continuing evolution that take into account the influence of modern mass media on the fairness of the trial, and potential racism resulting from changes in Canada's demographic profile.Less
This chapter discusses the history of the Canadian jury and develops a profile of the Canadian jury today. It argues that the Canadian system is both conservative and progressive. It exhibits conservative elements of an earlier age regarding judicial control over the trial process. On the other hand, there are trends in its continuing evolution that take into account the influence of modern mass media on the fairness of the trial, and potential racism resulting from changes in Canada's demographic profile.
David J. A. Cairns
- Published in print:
- 1999
- Published Online:
- March 2012
- ISBN:
- 9780198262848
- eISBN:
- 9780191682414
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198262848.001.0001
- Subject:
- Law, Legal History
The modern adversarial criminal trial emerged from the punitive and procedural upheaval in the criminal law of the first half of the nineteenth century. The campaign against capital punishment, which ...
More
The modern adversarial criminal trial emerged from the punitive and procedural upheaval in the criminal law of the first half of the nineteenth century. The campaign against capital punishment, which marked the century's early decades, stimulated procedural reform, including the enactment in 1836 of the Prisoners' Counsel Act. The 1836 Act enabled defence counsel for the first time to address the jury in felony trials. It generated a unique debate in Parliament, the press and the legal professions on the merits and dangers of advocacy. This book examines the debate and the practical implications of procedural reform for the conduct of criminal trials. The topics discussed include the increasing sophistication of prosecution and defence advocacy, the beginnings of modern professional ethics and the conscious rationalisation of adversary procedure as the best means to discover the truth. The book analyses the practice of advocacy and identifies its significance for the administration of justice. It includes case studies of four major criminal trials that demonstrate the interrelationships between advocacy and procedure in the making of the adversarial criminal trial.Less
The modern adversarial criminal trial emerged from the punitive and procedural upheaval in the criminal law of the first half of the nineteenth century. The campaign against capital punishment, which marked the century's early decades, stimulated procedural reform, including the enactment in 1836 of the Prisoners' Counsel Act. The 1836 Act enabled defence counsel for the first time to address the jury in felony trials. It generated a unique debate in Parliament, the press and the legal professions on the merits and dangers of advocacy. This book examines the debate and the practical implications of procedural reform for the conduct of criminal trials. The topics discussed include the increasing sophistication of prosecution and defence advocacy, the beginnings of modern professional ethics and the conscious rationalisation of adversary procedure as the best means to discover the truth. The book analyses the practice of advocacy and identifies its significance for the administration of justice. It includes case studies of four major criminal trials that demonstrate the interrelationships between advocacy and procedure in the making of the adversarial criminal trial.
Sally Lloyd-Bostock and Cheryl Thomas
- Published in print:
- 2000
- Published Online:
- January 2010
- ISBN:
- 9780198298564
- eISBN:
- 9780191705236
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198298564.003.0002
- Subject:
- Law, Comparative Law, Legal Profession and Ethics
This chapter begins with a historical look at the English jury, and then briefly places the jury and jury reform in the context of the English legal and political system. After outlining the limited ...
More
This chapter begins with a historical look at the English jury, and then briefly places the jury and jury reform in the context of the English legal and political system. After outlining the limited role remaining for juries in civil cases, it focuses on the shrinking right to jury trial in criminal trials, and the rules governing such matters as the juror selection, the conduct of the trial, and verdicts.Less
This chapter begins with a historical look at the English jury, and then briefly places the jury and jury reform in the context of the English legal and political system. After outlining the limited role remaining for juries in civil cases, it focuses on the shrinking right to jury trial in criminal trials, and the rules governing such matters as the juror selection, the conduct of the trial, and verdicts.
Michael Chesterman
- Published in print:
- 2000
- Published Online:
- January 2010
- ISBN:
- 9780198298564
- eISBN:
- 9780191705236
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198298564.003.0004
- Subject:
- Law, Comparative Law, Legal Profession and Ethics
Along with various other English social, cultural, and legal practices, the English model of trial by jury was adopted in each of the Australian colonies at a relatively early stage of its ...
More
Along with various other English social, cultural, and legal practices, the English model of trial by jury was adopted in each of the Australian colonies at a relatively early stage of its development, and remains an enduring feature of the Australian legal system. This chapter discusses the Australian jury system.Less
Along with various other English social, cultural, and legal practices, the English model of trial by jury was adopted in each of the Australian colonies at a relatively early stage of its development, and remains an enduring feature of the Australian legal system. This chapter discusses the Australian jury system.
Stephen C. Thaman
- Published in print:
- 2000
- Published Online:
- January 2010
- ISBN:
- 9780198298564
- eISBN:
- 9780191705236
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198298564.003.0009
- Subject:
- Law, Comparative Law, Legal Profession and Ethics
This chapter focuses on the jury systems in Spain and Russia. The reintroduction of trial by jury in Russian (1993) and Spain (1995) is interesting for two reasons. First, it is a surprising reversal ...
More
This chapter focuses on the jury systems in Spain and Russia. The reintroduction of trial by jury in Russian (1993) and Spain (1995) is interesting for two reasons. First, it is a surprising reversal in the long-term trend toward the elimination of the classic jury in favour of courts composed exclusively of professional judges, or of ‘mixed courts’ in which professional judges and lay assessors decide all questions of fact, law, and sentence. Second, it raises the question of whether the jury can act as a catalyst in the reform of Continental European criminal procedure.Less
This chapter focuses on the jury systems in Spain and Russia. The reintroduction of trial by jury in Russian (1993) and Spain (1995) is interesting for two reasons. First, it is a surprising reversal in the long-term trend toward the elimination of the classic jury in favour of courts composed exclusively of professional judges, or of ‘mixed courts’ in which professional judges and lay assessors decide all questions of fact, law, and sentence. Second, it raises the question of whether the jury can act as a catalyst in the reform of Continental European criminal procedure.
Carsten Stahn
- Published in print:
- 2020
- Published Online:
- July 2020
- ISBN:
- 9780198864189
- eISBN:
- 9780191896385
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198864189.003.0005
- Subject:
- Law, Public International Law
The chapter examines to what extent international criminal proceedings enable discursive justice. It draws on performative theories (e.g. Julie Stone Peters) and semiotics to show that proceedings ...
More
The chapter examines to what extent international criminal proceedings enable discursive justice. It draws on performative theories (e.g. Julie Stone Peters) and semiotics to show that proceedings have symbolic, narrative, didactic, and transformative functions. They involve a stage, a plot, audiences, and scripting. In legal literature, these features are often associated with negative attributes, such as ‘show trials’ in the political sense. However, performance is not necessarily something negative. As Niklas Luhmann has demonstrated, role play, that is, the exercise of certain ascribed or expected roles in proceedings, may have certain positive effects. The chapter demonstrates how different agents in the criminal process (e.g. Prosecution, witnesses, Defence, victims, judges) have used narratives to convey messages to different audiences. It argues that international criminal proceedings encompass more performative, rather than truly discursive elements, due to their adversarial structures.Less
The chapter examines to what extent international criminal proceedings enable discursive justice. It draws on performative theories (e.g. Julie Stone Peters) and semiotics to show that proceedings have symbolic, narrative, didactic, and transformative functions. They involve a stage, a plot, audiences, and scripting. In legal literature, these features are often associated with negative attributes, such as ‘show trials’ in the political sense. However, performance is not necessarily something negative. As Niklas Luhmann has demonstrated, role play, that is, the exercise of certain ascribed or expected roles in proceedings, may have certain positive effects. The chapter demonstrates how different agents in the criminal process (e.g. Prosecution, witnesses, Defence, victims, judges) have used narratives to convey messages to different audiences. It argues that international criminal proceedings encompass more performative, rather than truly discursive elements, due to their adversarial structures.
John H. Langbein
- Published in print:
- 2005
- Published Online:
- January 2010
- ISBN:
- 9780199287239
- eISBN:
- 9780191718137
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199287239.003.0002
- Subject:
- Law, Criminal Law and Criminology, Legal History
In criminal prosecutions for high treason, the crown was always represented by counsel, but the rule against defense counsel prevented the defendants from having a lawyer. In the decade preceding the ...
More
In criminal prosecutions for high treason, the crown was always represented by counsel, but the rule against defense counsel prevented the defendants from having a lawyer. In the decade preceding the Glorious Revolution of 1688-89, a series of sensational treason trials occurred, most notably the Popish Plot trials of 1678-80, in which weak or perjured evidence led to the conviction and execution of many persons, including leading political figures. It became known within a few years of the Popish Plot trials that the accusing evidence had been perjured, and that the executed defendants had been innocent. Many of these defendants had complained at their trials of the unfairness of denying them defense counsel when the crown was represented. In the Treason Trials Act of 1696, Parliament evened the playing field by abrogating the rule against defense counsel, but only in cases of high treason, which were quite rare. The ban on counsel remained for cases of felony.Less
In criminal prosecutions for high treason, the crown was always represented by counsel, but the rule against defense counsel prevented the defendants from having a lawyer. In the decade preceding the Glorious Revolution of 1688-89, a series of sensational treason trials occurred, most notably the Popish Plot trials of 1678-80, in which weak or perjured evidence led to the conviction and execution of many persons, including leading political figures. It became known within a few years of the Popish Plot trials that the accusing evidence had been perjured, and that the executed defendants had been innocent. Many of these defendants had complained at their trials of the unfairness of denying them defense counsel when the crown was represented. In the Treason Trials Act of 1696, Parliament evened the playing field by abrogating the rule against defense counsel, but only in cases of high treason, which were quite rare. The ban on counsel remained for cases of felony.
Ulinka Rublack
- Published in print:
- 2001
- Published Online:
- October 2011
- ISBN:
- 9780198208860
- eISBN:
- 9780191678165
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198208860.003.0002
- Subject:
- History, European Early Modern History
For women and men alike, four factors — mobility, poverty, low social capital, and single status — dramatically increased the threat of being labeled and accused. Such people were hardly in a ...
More
For women and men alike, four factors — mobility, poverty, low social capital, and single status — dramatically increased the threat of being labeled and accused. Such people were hardly in a position to object to accusations and sentences. This chapter deals mainly with the experiences of such vulnerable people accused of serious crime during a trial. Women were less often punished for political dissent because they had no political rights, and their views could easily be dismissed. Most heads of households were male and thus made responsible for debts and failure to pay taxes. Similarly, men were more often imprisoned for disturbing the public peace. Women's relative abstinence from drinking and violence also limited the number of homicides committed by them. Criminal trials represented male violence and female desire and bad motherhood as the key threats to society.Less
For women and men alike, four factors — mobility, poverty, low social capital, and single status — dramatically increased the threat of being labeled and accused. Such people were hardly in a position to object to accusations and sentences. This chapter deals mainly with the experiences of such vulnerable people accused of serious crime during a trial. Women were less often punished for political dissent because they had no political rights, and their views could easily be dismissed. Most heads of households were male and thus made responsible for debts and failure to pay taxes. Similarly, men were more often imprisoned for disturbing the public peace. Women's relative abstinence from drinking and violence also limited the number of homicides committed by them. Criminal trials represented male violence and female desire and bad motherhood as the key threats to society.
Alex Stein
- Published in print:
- 2005
- Published Online:
- January 2010
- ISBN:
- 9780198257363
- eISBN:
- 9780191711039
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198257363.003.0006
- Subject:
- Law, Philosophy of Law
This chapter discusses risk of error allocation in criminal trials. Topics covered include the ‘equal best’ standard, the burden of proof, exclusion, pre-emption, corroboration, and discretion.
This chapter discusses risk of error allocation in criminal trials. Topics covered include the ‘equal best’ standard, the burden of proof, exclusion, pre-emption, corroboration, and discretion.
Lester W. Kiss
- Published in print:
- 2000
- Published Online:
- January 2010
- ISBN:
- 9780198298564
- eISBN:
- 9780191705236
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198298564.003.0010
- Subject:
- Law, Comparative Law, Legal Profession and Ethics
This chapter analyzes whether the readoption of criminal jury trials in present-day Japan would be feasible from cultural, societal, and legal viewpoints in light of Japan's prior experience with a ...
More
This chapter analyzes whether the readoption of criminal jury trials in present-day Japan would be feasible from cultural, societal, and legal viewpoints in light of Japan's prior experience with a jury system. Section II considers why reversion to trial by jury is being considered by Japanese lawyers and judges. Section III describes the jury system in Japan from 1928 to 1943, and the problems with the system that caused its suspension. Section IV examines the two main types of layperson juries used in other countries. Section V considers the question of whether the adoption of one of the jury systems considered in Section IV would be feasible in Japan.Less
This chapter analyzes whether the readoption of criminal jury trials in present-day Japan would be feasible from cultural, societal, and legal viewpoints in light of Japan's prior experience with a jury system. Section II considers why reversion to trial by jury is being considered by Japanese lawyers and judges. Section III describes the jury system in Japan from 1928 to 1943, and the problems with the system that caused its suspension. Section IV examines the two main types of layperson juries used in other countries. Section V considers the question of whether the adoption of one of the jury systems considered in Section IV would be feasible in Japan.
Mark A. Drumbl
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199592654
- eISBN:
- 9780191738807
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199592654.001.0001
- Subject:
- Law, Public International Law
The international community's efforts to halt child soldiering have yielded some successes. But this pernicious practice persists. It may shift locally, but it endures globally. Preventative measures ...
More
The international community's efforts to halt child soldiering have yielded some successes. But this pernicious practice persists. It may shift locally, but it endures globally. Preventative measures therefore remain inadequate. Former child soldiers experience challenges readjusting to civilian life. Reintegration is complex and eventful. The homecoming is only the beginning. Reconciliation within communities afflicted by violence committed by and against child soldiers is incomplete. Shortfalls linger on the restorative front. Still, conversations about child soldiers mostly involve the same story, told over and over, and repeat the same assumptions, over and over. Current humanitarian discourse sees child soldiers as passive victims, tools of war, vulnerable, psychologically devastated, and not responsible for their violent acts. This perception has come to suffuse international law and policy. Although reflecting much of the lives of child soldiers, this portrayal also omits critical aspects. This book pursues an alternate path by reimagining the child soldier. It approaches child soldiers with a more nuanced and less judgmental mind. It offers a way to think about child soldiers that would invigorate international law, policy, and best practices. Where does this reimagination lead? Not toward retributive criminal trials, but instead toward restorative forms of justice. Toward forgiveness instead of excuse, thereby facilitating reintegration and promoting social repair within afflicted communities. Toward a better understanding of child soldiering, without which the practice cannot be ended. This book also offers fresh thinking on related issues, ranging from juvenile justice, to humanitarian interventions, to the universality of human rights, to the role of law in responding to mass atrocity.Less
The international community's efforts to halt child soldiering have yielded some successes. But this pernicious practice persists. It may shift locally, but it endures globally. Preventative measures therefore remain inadequate. Former child soldiers experience challenges readjusting to civilian life. Reintegration is complex and eventful. The homecoming is only the beginning. Reconciliation within communities afflicted by violence committed by and against child soldiers is incomplete. Shortfalls linger on the restorative front. Still, conversations about child soldiers mostly involve the same story, told over and over, and repeat the same assumptions, over and over. Current humanitarian discourse sees child soldiers as passive victims, tools of war, vulnerable, psychologically devastated, and not responsible for their violent acts. This perception has come to suffuse international law and policy. Although reflecting much of the lives of child soldiers, this portrayal also omits critical aspects. This book pursues an alternate path by reimagining the child soldier. It approaches child soldiers with a more nuanced and less judgmental mind. It offers a way to think about child soldiers that would invigorate international law, policy, and best practices. Where does this reimagination lead? Not toward retributive criminal trials, but instead toward restorative forms of justice. Toward forgiveness instead of excuse, thereby facilitating reintegration and promoting social repair within afflicted communities. Toward a better understanding of child soldiering, without which the practice cannot be ended. This book also offers fresh thinking on related issues, ranging from juvenile justice, to humanitarian interventions, to the universality of human rights, to the role of law in responding to mass atrocity.
Peter Duff
- Published in print:
- 2000
- Published Online:
- January 2010
- ISBN:
- 9780198298564
- eISBN:
- 9780191705236
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198298564.003.0007
- Subject:
- Law, Comparative Law, Legal Profession and Ethics
This chapter focuses on the Scottish criminal jury. Specifically, it discusses the origins of the Scottish criminal jury and the incidence of jury trial. It shows that the Scottish jury has existed ...
More
This chapter focuses on the Scottish criminal jury. Specifically, it discusses the origins of the Scottish criminal jury and the incidence of jury trial. It shows that the Scottish jury has existed for a long time and without serious challenge, despite the absence of such features which are often considered elsewhere as integral parts of a jury trial.Less
This chapter focuses on the Scottish criminal jury. Specifically, it discusses the origins of the Scottish criminal jury and the incidence of jury trial. It shows that the Scottish jury has existed for a long time and without serious challenge, despite the absence of such features which are often considered elsewhere as integral parts of a jury trial.
RA Duff and SE Marshall
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199237159
- eISBN:
- 9780191705427
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199237159.003.0012
- Subject:
- Law, Philosophy of Law
This chapter begins with a conception of the criminal trial as the forum in which criminal responsibility is formally and publicly actualized, and with an explication of the idea of responsibility as ...
More
This chapter begins with a conception of the criminal trial as the forum in which criminal responsibility is formally and publicly actualized, and with an explication of the idea of responsibility as answerability on which that conception depends. It then provides an account of criminal responsibility as a matter of being answerable to our fellow citizens for the public wrongs that we commit — a ‘public’ wrong being a wrong that properly concerns all citizens simply by virtue of their shared membership of the polity. The kind of public reason on which such answerability depends is discussed.Less
This chapter begins with a conception of the criminal trial as the forum in which criminal responsibility is formally and publicly actualized, and with an explication of the idea of responsibility as answerability on which that conception depends. It then provides an account of criminal responsibility as a matter of being answerable to our fellow citizens for the public wrongs that we commit — a ‘public’ wrong being a wrong that properly concerns all citizens simply by virtue of their shared membership of the polity. The kind of public reason on which such answerability depends is discussed.
Mark R. Reiff and Rowan Cruft
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199592814
- eISBN:
- 9780191729034
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199592814.003.0001
- Subject:
- Law, Criminal Law and Criminology
Throughout a long and distinguished career, Antony Duff has had a lot to say about the philosophy of punishment. One of his most important contributions is with regard to the question of ...
More
Throughout a long and distinguished career, Antony Duff has had a lot to say about the philosophy of punishment. One of his most important contributions is with regard to the question of justification, and his communicative theory of punishment has become highly influential. But there are other topics within this area of philosophy on which Duff's work has had great impact too. One such topic is the question that is often paired with punishment, that of responsibility, or what connects people to events. Another is the question of attempts, or when is an act in furtherance of a crime a crime itself as opposed to the innocent act it appears to be. Another topic is the question of criminalisation, or what kind of conduct should be subject to the sanctions of the criminal law. And finally there is the topic that relates to the question of the philosophy of trial, or how do we go about deciding exactly who is guilty of what and what punishment (if any) is due, a topic on which Duff has been a pioneer. These are the topics addressed in this chapter.Less
Throughout a long and distinguished career, Antony Duff has had a lot to say about the philosophy of punishment. One of his most important contributions is with regard to the question of justification, and his communicative theory of punishment has become highly influential. But there are other topics within this area of philosophy on which Duff's work has had great impact too. One such topic is the question that is often paired with punishment, that of responsibility, or what connects people to events. Another is the question of attempts, or when is an act in furtherance of a crime a crime itself as opposed to the innocent act it appears to be. Another topic is the question of criminalisation, or what kind of conduct should be subject to the sanctions of the criminal law. And finally there is the topic that relates to the question of the philosophy of trial, or how do we go about deciding exactly who is guilty of what and what punishment (if any) is due, a topic on which Duff has been a pioneer. These are the topics addressed in this chapter.
