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This chapter outlines the religious development of Ireland between the Reformation and the late 18th centuries, and explains the failure of the Reformation in Ireland. It argues that the religious geography of Ireland was settled by the early 18th century and has remained unchanged since then.

Penal laws continued to exclude the Catholic, and to a lesser extent, Protestant dissenter populations from full citizenship. Despite major legal disadvantages, there was a substantial Catholic propertied interest, and a growing ecclesiastical establishment. Presbyterians remained the strongest religious group in Ulster, though now divided between traditional (Old Light) and more liberal (New Light) wings. The Church of Ireland, despite being entangled in the web of public patronage, was not the wholly moribund institution often claimed.

This chapter examines the manner in which Article 20(1) of the Covenant has been interpreted and applied. Drawing on the periodic reports of states parties to the Human Rights Committee, and the responses of the Committee members, national legislation is considered. The compatibility of the prohibition with the right to freedom of expression and the responsibility of states for propaganda for war is fully examined. Also discussed in detail are the various reservations to Article 20(1), with the justifications given for these reservations, all but one of which has been entered by a Western state, rejected as being based on narrow political interests rather than legal concerns. Also examined is the relevant jurisprudence of the European and American regional human rights systems.

The accession of James II gave Catholics a short-lived ascendancy, until the Glorious Revolution and the defeat of James's Irish supporters by William III. Immediately afterwards the Irish parliament, taking advantage of the war time crisis in government finances, staked its claim to a share in the liberties associated with the Revolution. It also used its new bargaining power to demand penal laws against Irish Catholics. Protestant dissenters had played their part in the Protestant victory, but their rising numbers, due to continued Scottish immigration, created fear within the Anglican ruling class, leading to the imposition of the sacramental test.

This chapter discusses the conceptual ground for the reconciliation of the agency and welfarist paradigms in penal law. It begins by describing the internal coherence of the agency model, relating its basic features to the abstract conception of freedom that informs it. It then tries to show how the limitations of this conception are revealed within the agency paradigm itself, notably in the concessions the law must make to considerations of welfare in differentiating wrongs according to seriousness, and in dealing with conflicts between property and the right to self-preservation. It sets out the welfarist paradigm and shows how the absolutization of this model negates the autonomy of the self that it means to actualize. The self-contradictoriness of each principle, when absolutized to the exclusion of the other, reveals the genuine ground of law as the totality that includes both as subordinate moments. This totality is called dialogic community, whose structure of mutual recognition is the latent theme of both paradigms.

Was Catholic suffering under the penal laws the stuff of legend? What were the penal laws for, and were they implemented? More to the point, perhaps, is the question was the symbolic value of penal legislation more important in the construction of eighteenth and nineteenth-century identity than any disabilities that Catholics may actually have experienced in their implementation? These and related issues are explored in this chapter. The fact remains, however, that Catholic Ireland harboured profound grievances in connection with the penal code. This would condition the response of institutional Catholicism to subsequent laws, and made it difficult for churchmen to respond objectively to British attempts at remedial legislation in Ireland.

This chapter argues that police power has shaped not only the execution of penal sanctions in so-called correctional facilities but the American penal process in its entirety. As a police matter, American penal law never underwent the basic critique in light of the principles that ostensibly drove the American Revolution and that continue to shape American political self-understanding and ideology. While the Enlightenment drew into question the very legitimacy of punishment in a state self-governed by autonomous persons, American political and legal thought largely perceived, and ignored, the problem of punishment as an administrative police issue. Contemporary American penal law, then, appears as a police system—albeit a fairly primitive and inefficient one—for the identification and disposal of human threats, with little regard to hallowed principles like actus reus and mens rea that are little more than anachronistic remnants of the common law without any obvious connection to more fundamental questions of legitimacy. Focusing on the ultimate source of legitimacy in a modern democratic state and in the American Republic in particular—autonomy, or self-government—the chapter sharpens the features of this police model of the penal process by contrasting it with an alternative model that would submit itself to, rather than avert, the sort of legitimacy critique that a purported commitment to the protection of the “life, liberty, and property” of citizen-offenders in a Rechtsstaat would seem to demand.

This chapter discusses the charges of crimes against peace arising out of the Second World War. It begins with the trial of German major war criminals. Defence criticisms of the counts relating to crimes against peace were most fully developed by Dr. Jahrreiss. He examined the question of the ex post facto nature of the penal law in the Charter of the Tribunal. The opinion of the Tribunal on the legal basis of the counts charging crimes against peace is illustrated. French and United States military tribunals were concerned with trials under Law No. 10. The application in National Jurisdictions of the concept of crimes against peace, provisions relating to crimes against peace in the peace treaties, and crimes against peace in relation to legislation on treason, collaboration, and analogous offences are also discussed. The evidence that crimes against peace as defined in the Charters of the International Military Tribunals at Nuremberg and Tokyo have been accepted as a part of Positive Law since 1946. The affirmation of Article 6 of the Charter annexed to the London agreement by United Nations Organs is explored.

The accession of James II paved the way for William Penn to play an increasingly prominent political role. Liberty of conscience appeared closer than ever, under a sympathetic king who cultivated Penn’s personal involvement in advancing his tolerationist program of repealing penal legislation and the Test Acts. In insisting that legitimate laws are made by consent-based political institutions, and that they ought to be motivated by civil interest and the common good, Penn was able to endorse immediate toleration through the king’s prerogative powers and simultaneously urge the legitimation of James’s Declarations by Parliament. However, Penn’s association with James would bring about his downfall, as he quickly became identified with an unpopular (and, after 1688, deposed) ruler. This chapter elaborates Penn’s high hopes for James, his theoretical and practical contributions to the tolerationist effort, and the eventual downfall of the campaign for liberty of conscience and James’s reign more generally.

This chapter considers William Blundell's activities in relation to his family and friends in connection with his claim of passive victimhood. It suggests that far from being a victim, Blundell created a series of defence mechanisms that protected him from the full force of the penal laws. He maintained kinship and social networks that provided him with both personal security and protection for his estate and he used the freedom that these strategies afforded him to protect other Catholics in his networks.

This chapter examines William Blundell's claims that he was a loyal subject in light of his activities related to the removal of the penal laws and the admission of Catholics into every area of English social life. It suggests that Blundell's claim of being a loyal subject represented loyalty to the monarchy and not the regime, which Blundell undermined. This chapter also argues that Blundell made a significant contribution to safeguarding the prospects of English Catholicism and his activities were a direct threat to the Protestant state.

This chapter tells the history of the Three Strikes proposal and provides a summary of its terms. What makes the story of Three Strikes unusual in the annals of state government is that California's Three Strikes proposal originated from marginal pressure groups without any powerful constituency in the legislative or executive branches of state government. Yet it became law without any significant amendment. This chapter begins with a capsule history of the Three Strikes initiative in California from a proposal to legislation to an initiative adopted by the voters. A second section lists a few of the objections that can be made to the penal approaches of the initiative. The third section takes more space to describe the two sets of “missing persons” in the California legislative process.

This chapter examines of the role of the lex fori in English private international law before proceeding to examine the rules of the conflict of laws applicable in an English court. Issues for which the rules of the conflict of laws select the lex fori as the law to be applied include grounds for the dissolution (as distinct from nullity) of marriage, even if the marriage has little or nothing to do with the United Kingdom; or settlement of the distribution of assets in an insolvency even though there may be significant overseas elements. Where the rules of the conflict of laws select a foreign law, its application, even though it is proved to the satisfaction of the court, may be disrupted or derailed by a provision of the lex fori instead. The remainder of the chapter covers procedural issues; penal, revenue, and public laws; and public policy.

This chapter discusses the structure of choice-of-law rules and the mechanics of the choice-of-law process. It examines the components of typical choice-of-law rules and the three mental steps in applying them (characterization, localization, and application) and the various exceptions or escapes available in each step: the substance versus procedure dichotomy, renvoi, the public policy (ordre public) exception, the penal-law exception, and the foreign revenue rule. It also discusses domicile as a concept that performs a variety of functions in American conflicts law. The chapter concludes with a most practical issue in the operation of any choice-of-law system—judicial notice and proof of foreign law.

Most historical fiction set before 1800 had a religious, or at least had a religio-ethno-political, basis. Early historical novels were either about justifying the Protestant settlement in Ireland or are evangelical novels. As the century wore, on Catholic writers took to composing historical novels, but mostly about the 1798 rebellion and in more political than religious terms. The historical novels of Emily Lawless in the 1890s saw the end of historical fiction as religious propaganda. On the Catholic side there was no significant religious fiction as writers were intent on asserting Irish-Catholic respectability in ways consonant with Victorian mores. By the twentieth century, in the work of James Joyce and others, Catholicism had become an inclusive way of life against which the assertive individual often needed to define him or herself, mostly by way of rebellion. Yet many of the tropes of that later fiction relied on the earlier anti-Catholic writing, the two being bridged, from her own eccentric position, by May Laffan.

The chapter examines the rising criticisms of the individualization principle in the European legal culture between the 1920s and 1930s due to the risks of administrative discretion. It explores the rise of the authoritarian paradigm of criminal law in Nazi Germany (with Dahm’s theory) and Fascist Italy (with Rocco’s codification), its opposition by liberal scholars (Radzinowicz, Drost), its relationship with criminological theories, and the role and use of preventive detention in authoritarian penal regimes. After analysing the arguments of Jerome Hall, who claimed for a return to the nulla poena sine lege principle, warning against the political and social dangers of an unlimited individualization, the chapter provides some considerations on the historical interpretation of the contribution of criminology to the formation of totalitarian penal ideologies, its legacy, exploitation, and betrayal.