Results for 'Criminal law'

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  1.  62
    Why Criminal Law: A Question of Content? [REVIEW]Douglas Husak - 2008 - Criminal Law and Philosophy 2 (2):99-122.
    I take it as obvious that attempts to justify the criminal law must be sensitive to matters of criminalization—to what conduct is proscribed or permitted. I discuss three additional matters that should be addressed in order to justify the criminal law. First, we must have a rough idea of what degree of deviation is tolerable between the set of criminal laws we ought to have and the set we really have. Second, we need information about how the (...)
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  2.  78
    The Philosophy of Criminal Law: Selected Essays.Douglas Husak - 2010 - Oxford University Press.
    Does criminal liability require an act? -- Motive and criminal liability -- The costs to criminal theory of supposing that intentions are irrelevant to permissibility -- Transferred intent -- The nature and justifiability of nonconsummate offenses -- Strict liability, justice, and proportionality -- The sequential principle of relative culpability -- Willful ignorance, knowledge, and the equal culpability thesis : a study of the significance of the principle of legality -- Rapes without rapists : consent and reasonable mistake (...)
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  3.  21
    International Criminal Law as a Site for Enhancing Women’s Rights? Challenges, Possibilities, Strategies.Kiran Kaur Grewal - 2015 - Feminist Legal Studies 23 (2):149-165.
    Many scholars and activists have argued that the International Criminal Court holds potential for advancing the rights of women and girls, leading to extensive feminist engagement with and investment in the Court. As the ICC enters its second decade of existence, this article offers a reflection on both the possibilities and the challenges facing feminists. Can the international criminal law really offer a site for enhancing the rights of women? And if so, how? To explore these questions I (...)
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  4. The Grammar of Criminal Law: American, Comparative, and International.George P. Fletcher - 2007 - Oxford University Press.
    The Grammar of Criminal Law is a 3-volume work that addresses the field of international and comparative criminal law, with its primary focus on the issues of international concern, ranging from genocide, to domestic efforts to combat terrorism, to torture, and to other international crimes. The first volume is devoted to foundational issues. The Grammar of Criminal Law is unique in its systematic emphasis on the relationship between language and legal theory; there is no comparable comparative study (...)
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  5.  65
    Criminal Law Theory: Doctrines of the General Part.Stephen Shute & Andrew Simester (eds.) - 2002 - Oxford University Press.
    Written by leading philosophers and lawyers from the United States and the United Kingdom, this collection of original essays offers new insights into the doctrines that make up the general part of the criminal law. It sheds theoretical light on the diversity and unity of the general part and advances our understanding of such key issues as criminalisation, omissions, voluntary actions, knowledge, belief, reckelssness, duress, self-defence, entrapment and officially-induced mistake of law.
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  6.  42
    The Criminal Law as Last Resort.Douglas Husak - 2004 - Oxford Journal of Legal Studies 24 (2):207-235.
    In this article I examine one condition a minimalist theory of criminalization might contain: the criminal law should be used only as a last resort. I discuss how this principle should be interpreted and the reasons we have to accept it. I conclude that a theory of criminalization should probably include the (appropriately construed) last resort principle. But this conclusion will prove disappointing to those who hope to employ this principle to bring about fundamental reform in the substantive (...) law. I argue that the last resort principle may not help to reverse the growth of the criminal law to any degree that could not be achieved more directly and less controversially by other principles that a theory of criminalization is generally thought to include. Unless we reject others parts of conventional wisdom about crime and punishment, the application of a last resort principle is unlikely to bring about sweeping changes that theorists might have anticipated. (shrink)
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  7. Criminal Law as Public Law.Malcolm Thorburn - 2011 - In Antony Duff & Stuart P. Green (eds.), Philosophical Foundations of Criminal Law. Oxford University Press. pp. 21--43.
     
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  8.  88
    Theorizing Criminal Law Reform.Roger A. Shiner - 2009 - Criminal Law and Philosophy 3 (2):167-186.
    How are we to understand criminal law reform? The idea seems simple—the criminal law on the books is wrong: it should be changed. But 'wrong’ how? By what norms 'wrong’? As soon as one tries to answer those questions, the issue becomes more complex. One kind of answer is that the criminal law is substantively wrong: that is, we assume valid norms of background political morality, and we argue that doctrinally the criminal law on the books (...)
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  9.  33
    Criminal Law and the Autonomy Assumption: Adorno, Bhaskar, and Critical Legal Theory.Craig Reeves - 2014 - Journal of Critical Realism 13 (4):339-367.
    This article considers and criticizes criminal law‘s assumption of the moral autonomy of individuals, showing how that view rests on questionable and obscure Kantian commitments about the self, and proposes a naturalistic alternative developed through a synthetic reading of Adorno‘s and Bhaskar‘s account of the subject in relation to nature and society. As an embodied, emergent, changing subject whose practically rational powers are emergent, polymorphous, and contingent, the subject‘s moral autonomy is dependent on the conditions for experiences of solidarity (...)
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  10.  23
    Rethinking Criminal Law Theory: New Canadian Perspectives in the Philosophy of Domestic, Transnational, and International Criminal Law.François Tanguay-Renaud & James Stribopoulos (eds.) - 2012 - Hart Publishing.
    In the last two decades, the philosophy of criminal law has undergone a vibrant revival in Canada. The adoption of the Charter of Rights and Freedoms has given the Supreme Court of Canada unprecedented latitude to engage with principles of legal, moral, and political philosophy when elaborating its criminal law jurisprudence. Canadian scholars have followed suit by paying increased attention to the philosophical foundations of domestic criminal law. Because of Canada's leadership in international criminal law, both (...)
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  11.  61
    Criminal Law as It Pertains to Patients Suffering From Psychiatric Diseases.Maxwell R. Bennett & Peter M. S. Hacker - 2011 - Journal of Bioethical Inquiry 8 (1):45-58.
    The McNaughton rules for determining whether a person can be successfully defended on the grounds of mental incompetence were determined by a committee of the House of Lords in 1843. They arose as a consequence of the trial of Daniel McNaughton for the killing of Prime Minister Sir Robert Peel’s secretary. In retrospect it is clear that McNaughton suffered from schizophrenia. The successful defence of McNaughton on the grounds of mental incompetence by his advocate Sir Alexander Cockburn involved a profound (...)
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  12.  64
    Double Effect and the Criminal Law.Alexander Sarch - 2017 - Criminal Law and Philosophy 11 (3):453-479.
    American criminal law is committed to some version of the doctrine of double effect. In this paper, I defend a new variant of the agent-centered rationale for a version of DDE that is of particular relevance to the criminal law. In particular, I argue for a non-absolute version of DDE that concerns the relative culpability of intending a bad or wrongful state of affairs as opposed to bringing it about merely knowingly. My aim is to identify a particular (...)
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  13. Defending the Criminal Law: Reflections on the Changing Character of Crime, Procedure, and Sanctions.Andrew Ashworth & Lucia Zedner - 2008 - Criminal Law and Philosophy 2 (1):21-51.
    Recent years have seen mounting challenge to the model of the criminal trial on the grounds it is not cost-effective, not preventive, not necessary, not appropriate, or not effective. These challenges have led to changes in the scope of the criminal law, in criminal procedure, and in the nature and use of criminal trials. These changes include greater use of diversion, of fixed penalties, of summary trials, of hybrid civil–criminal processes, of strict liability, of incentives (...)
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  14.  46
    Philosophy of Criminal Law.Douglas Husak - 1987 - Rowman & Littlefield.
    This volume collects 17 of Douglas Husak's influential essays in criminal law theory. The essays span Husak's original and provocative contributions to the central topics in the field, including the grounds of criminal liability, relative culpability, the role of defences, and the justification of punishment. The volume includes an extended introduction by the author, drawing together the themes of his work, and exploring the goals of criminal theory.
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  15.  62
    Terrorizing Criminal Law.Lucia Zedner - 2014 - Criminal Law and Philosophy 8 (1):99-121.
    The essays in Waldron’s Torture, Terror, and Trade-Offs have important implications for debates about the criminalization of terrorism and terrorism-related offences and its consequences for criminal law and criminal justice. His reflections on security speak directly to contemporary debates about the preventive role of the criminal law. And his analysis of inter-personal security trade-offs invites much closer attention to the costs of counter-terrorism policies, particularly those pursued outside the criminal process. But is Waldron right to speak (...)
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  16.  95
    Understanding Criminal Law Through the Lens of Reason: Gardner, John. 2007. Offences and Defences: Selected Essays in the Philosophy of Criminal Law. Oxford: Oxford University Press, Xiv + 288 Pp.François Tanguay-Renaud - 2010 - Res Publica 16 (1):89-98.
    This is a review essay of Gardner, John. 2007, Offences and Defences: Selected Essays in the Philosophy of Criminal Law, Oxford: Oxford University Press, 288 pp.
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  17.  14
    Criminal Law, Philosophy and Public Health Practice.A. M. Viens, John Coggon & Anthony S. Kessel (eds.) - 2013 - Cambridge University Press.
    The goal of improving public health involves the use of different tools, with the law being one way to influence the activities of institutions and individuals. Of the regulatory mechanisms afforded by law to achieve this end, criminal law remains a perennial mechanism to delimit the scope of individual and group conduct. However, criminal law may promote or hinder public health goals, and its use raises a number of complex questions that merit exploration. This examination of the interface (...)
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  18.  21
    Criminal Law, the Victim and Community: The Shades of 'We' and the Conceptual Involvement of Community in Contemporary Criminal Law Theory. [REVIEW]Nina Peršak - 2014 - Criminal Law and Philosophy 8 (1):205-215.
    The article addresses the argument, put forward by Lernestedt, that the proprietor of the ‘criminal-law conflict’ is the community (or the community and the offender) and discusses his proposed theoretical model of criminal law trial. I raise questions regarding the legitimacy of such a model, focusing on four counts. Firstly, I assert that his assumptions about the state the individual and the old/new versions of criminal law theory are society-dependent. Secondly, I address some problems with the concept (...)
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  19.  14
    Does Criminal Law Deter? A Behavioural Science Investigation.Paul H. Robinson & John M. Darley - 2004 - Oxford Journal of Legal Studies 24 (2):173-205.
    Having a criminal justice system that imposes sanctions no doubt does deter criminal conduct. But available social science research suggests that manipulating criminal law rules within that system to achieve heightened deterrence effects generally will be ineffective. Potential offenders often do not know of the legal rules. Even if they do, they frequently are unable to bring this knowledge to bear in guiding their conduct, due to a variety of situational, social, or chemical factors. Even if they (...)
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  20. Truth, Error, and Criminal Law: An Essay in Legal Epistemology.Larry Laudan - 2006 - Cambridge University Press.
    Beginning with the premise that the principal function of a criminal trial is to find out the truth about a crime, Larry Laudan examines the rules of evidence and procedure that would be appropriate if the discovery of the truth were, as higher courts routinely claim, the overriding aim of the criminal justice system. Laudan mounts a systematic critique of existing rules and procedures that are obstacles to that quest. He also examines issues of error distribution by offering (...)
     
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  21.  39
    Rethinking Criminal Law: Critical Notice: Truth, Error, and Criminal Law: An Essay in Legal Epistemologyby Larry Laudan.Andrew Botterell - 2009 - Canadian Journal of Law and Jurisprudence 22 (1):93-112.
    Imagine the following. You have been asked to critically evaluate the criminal process in your home jurisdiction. In particular, you have been asked to determine whether the criminal process currently in place appropriately balances the need to maximize the chances of getting things right—of acquitting the innocent and convicting the guilty—with the need to minimize the chances of getting things wrong—of acquitting the guilty and convicting the innocent. How would you proceed? What rules of evidence and procedure would (...)
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  22.  93
    Offences and Defences: Selected Essays in the Philosophy of Criminal Law.John Gardner - 2007 - Oxford University Press.
    The wrongness of rape -- Rationality and the rule of law in offences against the person -- Complicity and causality -- In defence of defences -- Justifications and reasons -- The gist of excuses -- Fletcher on offences and defences -- Provocation and pluralism -- The mark of responsibility -- The functions and justifications of criminal law and punishment -- Crime : in proportion and in perspective -- Reply to critics.
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  23.  72
    Crime and Culpability: A Theory of Criminal Law.Larry Alexander, Kimberly Kessler Ferzan & Stephen J. Morse - 2009 - Cambridge University Press.
    This book presents a comprehensive overview of what the criminal law would look like if organised around the principle that those who deserve punishment should receive punishment commensurate with, but no greater than, that which they deserve. Larry Alexander and Kimberly Kessler Ferzan argue that desert is a function of the actor's culpability, and that culpability is a function of the risks of harm to protected interests that the actor believes he is imposing and his reasons for acting in (...)
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  24.  23
    European Criminal Law and European Identity.Mireille Hildebrandt - 2007 - Criminal Law and Philosophy 1 (1):57-78.
    This contribution aims to explain how European Criminal Law can be understood as constitutive of European identity. Instead of starting from European identity as a given, it provides a philosophical analysis of the construction of self-identity in relation to criminal law and legal tradition. The argument will be that the self-identity of those that share jurisdiction depends on and nourishes the legal tradition they adhere to and develop, while criminal jurisdiction is of crucial importance in this process (...)
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  25.  2
    Criminal Law Exceptionalism as an Affirmative Ideology, and its Expansionist Discontents.Christoph Burchard - forthcoming - Criminal Law and Philosophy:1-11.
    Criminal law exceptionalism, or so I suggest, has turned into an ideology in German and Continental criminal law theory. It rests on interrelated claims about the extraordinary qualities and properties of the criminal law and has led to exceptional doctrines in constitutional criminal law and criminal law theory. It prima facie paradoxically perpetuates and conserves the criminal law, and all too often leads to ideological thoughtlessness, which may blind us to the dark sides of (...)
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  26.  8
    Criminal Law’s Normative Aspirations in a Post-Positivist Frame.Charis Papacharalambous - 2019 - Jurisprudence 10 (1):77-84.
    Volume 10, Issue 1, March 2019, Page 77-84.
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  27. The Ends of Harm: The Moral Foundations of Criminal Law.Victor Tadros - 2011 - Oxford University Press.
    This book offers a critical examination of those theories and advances a new argument for punishment's justification, calling it the 'duty view'.
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  28.  10
    Redoing Criminal Law: Taking the Deviant Turn.Leo Katz & Alvaro Sandroni - forthcoming - Criminal Law and Philosophy:1-11.
    This is a review of Larry Alexander and Kim Ferzan’s Reflections on Crime and Culpability, a sequel to the authors’ Crime and Culpability. The two books set out a sweeping proposal for reforming our criminal law in ways that are at once commonsensical and mindbogglingly radical. But even if one is not on board with such a radical experiment, simply thinking it through holds many unexpected lessons: startlingly new insights about the current regime and about novel ways of doing (...)
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  29. Criminal Law Conversations.Paul Robinson, Kimberly Ferzan & Stephen Garvey (eds.) - 2009
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  30.  20
    Criminal Law Conversations: "Desert: Empirical, Not Metaphysical" and "Contractualism and the Sharing of Wrongs".Matthew Lister - 2009 - In Paul Robinson, Kimberly Ferzan & Stephen Garvey (eds.), Criminal Law Conversations.
    Following are two short contributions to the book, _Criminal Law Conversations_: commentaries on Paul Robinson's discussion of "Empirical Desert" and Antony Duff & Sandra Marshal's discussion of the sharing of wrongs.
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  31.  19
    General Principles of Criminal Law.Jerome Hall - 1960 - Lawbook Exchange.
    ISBN 1-58477-498-3. Cloth. $125. * The standard one-volume treatise based on classic legal-realist principles.
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  32.  2
    Should Criminal Law Mirror Moral Blameworthiness or Criminal Culpability? A Reply to Husak.Alexander Sarch - forthcoming - Law and Philosophy:1-24.
    In Ignorance of Law, Doug Husak defends a version of legal moralism on which ‘we should recognize a presumption that the criminal law should…be based, on conform to, or mirror critical morality’. Here I explore whether substantive criminal law rules should directly mirror not moral blameworthiness, but a distinct legal notion of criminal culpability – akin to moral blameworthiness but refined for deployment in legal systems. Contra Husak, I argue that the criminal law departing from the (...)
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  33. A History of the Criminal Law of England.James Fitzjames Stephen - 1996 - Routledge.
    As a practising lawyer and judge, it is the insights gained from Stephen's own experience that give an added practical dimension to this work. As well as his accounts of the history of the branches of the law, Stephen gives several fascinating analyses of famous trials, and explores the relation of madness to crime and the relation of law to ethics, physiology, and mental philosophy. His discussion also includes the subjects of criminal responsibility, offences against the state, the (...) jurisdiction of the Privy Council, libel, Indian criminal law and offences against religion. (shrink)
     
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  34.  12
    What is the Criminal Law For?Vincent Chiao - 2016 - Law and Philosophy 35 (2):137-163.
    The traditional distinction between retributive and distributive justice misconstrues the place of the criminal law in modern regulatory states. In the context of the regulatory state, the criminal law is a coercive rule-enforcing institution – regardless of whether it also serves the ends of retributive justice. As a rule-enforcing institution, the criminal law is deeply implicated in stabilizing the institutions and legal rules by means of which a state creates and allocates social advantage. As a coercive institution, (...)
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  35.  33
    International Criminal Law and Philosophy.Larry May & Zachary Hoskins (eds.) - 2010 - Cambridge University Press.
    International Criminal Law and Philosophy is the first anthology to bring together legal and philosophical theorists to examine the normative and conceptual foundations of international criminal law. In particular, through these essays the international group of authors addresses questions of state sovereignty; of groups, rather than individuals, as perpetrators and victims of international crimes; of international criminal law and the promotion of human rights and social justice; and of what comes after international criminal prosecutions, namely, punishment (...)
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  36. Rethinking Criminal Law. [REVIEW]Andrew Botterell - 2009 - Canadian Journal of Law and Jurisprudence 22:93-112.
    A review of Larry Laudan, Truth Error and Criminal Law: An Essay in Legal Epistemology (Cambridge University Press, 2006).
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  37.  4
    Criminal Law.Thomas Morawetz (ed.) - 1991 - New York University Press.
    This Major Reference series brings together a wide range of key international articles in law and legal theory. Many of these essays are not readily accessible, and their presentation in these volumes will provide a vital new resource for both research and teaching. Each volume is edited by leading international authorities who explain the significance and context of articles in an informative and complete introduction.
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  38.  46
    Why Criminal Law? The Role of Utilitarianism: A Response to Husak. [REVIEW]C. M. V. Clarkson - 2008 - Criminal Law and Philosophy 2 (2):131-135.
  39.  37
    International Criminal Law and Philosophy.Mark R. Reiff - 2011 - Social Theory and Practice 37 (2):370-378.
  40.  4
    Making the Modern Criminal Law: Criminalization and Civil Order.Lindsay Farmer - 2016 - Oxford University Press UK.
    The Criminalization series arose from an interdisciplinary investigation into criminalization, focussing on the principles that might guide decisions about what kinds of conduct should be criminalized, and the forms that criminalization should take. Developing a normative theory of criminalization, the series tackles the key questions at the heart of the issue: what principles and goals should guide legislators in deciding what to criminalize? How should criminal wrongs be classified and differentiated? How should law enforcement officials apply the law's specifications (...)
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  41.  6
    A Criminal Law for Semicitizens.Ivó Coca-Vila & Cristián Irarrázaval - forthcoming - Journal of Applied Philosophy.
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  42.  29
    Criminal Law, Policing Policy, and HIV Risk in Female Street Sex Workers and Injection Drug Users.Kim M. Blankenship & Stephen Koester - 2002 - Journal of Law, Medicine and Ethics 30 (4):548-559.
    In public health and the social sciences, there is growing recognition of the role that social context plays in determining health. Frequently, social relations of inequality are among the most important features of social context identified in this work, and emphasis is placed on identifying and addressing these inequalities in order to improve health. Within the field of HIV/AIDS prevention as well, researchers have begun to look beyond individuals for an understanding of the structural causes of HIV-related risk. This research (...)
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  43. The Preventive Turn in Criminal Law.Henrique Carvalho - 2017 - Oxford: Oxford University Press UK.
    Through a theoretical examination of the preventive turn in criminal law and justice which has gained momentum in Anglo-American criminal justice systems since the late-twentieth century, The Preventive Turn in Criminal Law demonstrates how recent transformations in criminal law and justiceare intrinsically related to and embedded in the way liberal society and liberal law have been imagined, developed, and conditioned by its social, political, and historical context. Henrique Carvalho identifies a tension between the idea of punishment (...)
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  44.  14
    Criminal Law and Cultural Diversity.Will Kymlicka, Claes Lernestedt & Matt Matravers (eds.) - 2014 - Oxford University Press.
    What place, if any, ought cultural considerations have when we blame and punish in the criminal law? Bringing together political and legal theorists Criminal Law and Cultural Diversity offers original and diverse discussions that go to the heart of both legal and political debates about multiculturalism, human agency, and responsibility.
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  45.  21
    Answering for Crime: Responsibility and Liability in the Criminal Law.Antony Duff - 2007 - Hart.
    In this long-awaited book, Antony Duff offers a new perspective on the structures of criminal law and criminal liability. His starting point is a distinction between responsibility (understood as answerability) and liability, and a conception of responsibility as relational and practice-based. This focus on responsibility, as a matter of being answerable to those who have the standing to call one to account, throws new light on a range of questions in criminal law theory: on the question of (...)
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  46.  16
    The Concept of Criminal Law.Sandra G. Mayson - 2020 - Criminal Law and Philosophy 14 (3):447-464.
    What distinguishes “criminal law” from all other law? This question should be central to both criminal law theory and criminal justice reform. Clarity about the distinctive feature of criminal law is especially important in the current moment, as the nation awakens to the damage that the carceral state has wrought and reformers debate the value and the future of criminal law institutions. Foundational though it is, however, the question has received limited attention. There is no (...)
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  47.  33
    Republican Responsibility in Criminal Law.Ekow N. Yankah - 2015 - Criminal Law and Philosophy 9 (3):457-475.
    Retributivism so dominates criminal theory that lawyers, legal scholars and law students assert with complete confidence that criminal law is justified only in light of violations of another person’s rights. Yet the core tenet of retributivism views criminal law fundamentally through the lens of individual actors, rendering both offender and victim unrecognizably denuded from their social and civic context. Doing so means that retributivism is unable to explain even our most basic criminal law practices, such as (...)
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  48. Truth, Knowledge, and the Standard of Proof in Criminal Law.Clayton Littlejohn - forthcoming - Synthese 197 (12):5253-5286.
    Could it be right to convict and punish defendants using only statistical evidence? In this paper, I argue that it is not and explain why it would be wrong. This is difficult to do because there is a powerful argument for thinking that we should convict and punish defendants using statistical evidence. It looks as if the relevant cases are cases of decision under risk and it seems we know what we should do in such cases (i.e., maximize expected value). (...)
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  49. Moral Uncertainty and the Criminal Law.Christian Barry & Patrick Tomlin - 2019 - In Kimberly Ferzan & Larry Alexander (eds.), Handbook of Applied Ethics and the Criminal Law. New York: Palgrave.
    In this paper we introduce the nascent literature on Moral Uncertainty Theory and explore its application to the criminal law. Moral Uncertainty Theory seeks to address the question of what we ought to do when we are uncertain about what to do because we are torn between rival moral theories. For instance, we may have some credence in one theory that tells us to do A but also in another that tells us to do B. We examine how we (...)
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  50.  73
    Public Wrongs and the Criminal Law.Ambrose Y. K. Lee - 2015 - Criminal Law and Philosophy 9 (1):155-170.
    This paper is about how best to understand the notion of ‘public wrongs’ in the longstanding idea that crimes are public wrongs. By contrasting criminal law with the civil laws of torts and contracts, it argues that ‘public wrongs’ should not be understood merely as wrongs that properly concern the public, but more specifically as those which the state, as the public, ought to punish. It then briefly considers the implications that this has on criminalization.
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