Results for 'Criminalisation'

124 found
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  1.  26
    Criminalising Anti-Social Behaviour.Andrew Cornford - 2012 - Criminal Law and Philosophy 6 (1):1-19.
    This paper considers the justifiability of criminalising anti-social behaviour through two-step prohibitions such as the Anti-Social Behaviour Order (ASBO). The UK government has recently proposed to abolish and replace the ASBO; however, the proposed new orders would retain many of its most controversial features. The paper begins by criticising the definition of anti-social behaviour employed in both the current legislation and the new proposals. This definition is objectionable because it makes criminalisation contingent upon the irrational judgements of (putative) victims, (...)
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  2.  79
    Harm and Wrongdoing in Criminalisation Theory.Andreas von Hirsch - 2014 - Criminal Law and Philosophy 8 (1):245-256.
    Contemporary theories of criminalisation address, with varying emphasis, themes concerning the harmfulness and the wrongfulness of the conduct. In his article for the present issue, Antony Duff relies chiefly on notions of wrongfulness as the basis for his proposed criminalisation doctrines; whereas in their 2011 volume on criminalisation, Andrew Simester and Andreas von Hirsch invoke both wrongfulness and harmfulness as prerequisites for prohibiting conduct. The present article assesses the comparative merits of these approaches, and argues in favour (...)
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  3.  40
    The Criminalisation of HIV Transmission.J. Chalmers - 2002 - Journal of Medical Ethics 28 (3):160-163.
    Since Bennett, Draper, and Frith published a paper in this journal in 2000 considering the possible criminalisation of HIV transmission, an important legal development has taken place. February 2001 saw the first successful United Kingdom prosecution for the sexual transmission of disease for over a century, when Stephen Kelly was convicted in Glasgow of recklessly injuring his former girlfriend by infecting her with HIV. Whether English criminal law can apply criminal penalties in such a case, however, still remains uncertain.This (...)
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  4. Robotic Rape and Robotic Child Sexual Abuse: Should They Be Criminalised?John Danaher - 2017 - Criminal Law and Philosophy 11 (1):71-95.
    Soon there will be sex robots. The creation of such devices raises a host of social, legal and ethical questions. In this article, I focus in on one of them. What if these sex robots are deliberately designed and used to replicate acts of rape and child sexual abuse? Should the creation and use of such robots be criminalised, even if no person is harmed by the acts performed? I offer an argument for thinking that they should be. The argument (...)
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  5.  16
    Criminalising Unknowing Defence.Suzanne Uniacke - 2017 - Journal of Applied Philosophy:651-664.
    Should a legal plea of self- or third-party defence include an ‘awareness component’ that requires that the actor was aware of the justificatory facts at the time of action? Some theorists argue that in cases of so-called unknowing defence, where an actor in fact averts an otherwise unavoidable danger to himself or another person although unaware at the time of action that this is what he is doing, the objective facts alone should allow a plea of self- or third-party defence. (...)
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  6.  79
    Extending the Golden Thread? Criminalisation and the Presumption of Innocence.Patrick Tomlin - 2013 - Journal of Political Philosophy 21 (1):44-66.
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  7.  40
    Precautionary Criminalisation in an Age of Vulnerable Autonomy: Review of Regulating Deviance: The Redirection of Criminalisation and the Futures of Criminal Law, Edited by Bernadette McSherry, Alan Norrie, and Simon Bronitt : ISBN 978-1-841113-890-9.Jonathan Simon - 2012 - Criminal Law and Philosophy 6 (2):277-279.
    Precautionary Criminalisation in an Age of Vulnerable Autonomy Content Type Journal Article Category Book Review Pages 1-3 DOI 10.1007/s11572-012-9142-4 Authors Jonathan Simon, Adrian A Kragen Professor of Law, University of California, Berkeley, CA, USA Journal Criminal Law and Philosophy Online ISSN 1871-9805 Print ISSN 1871-9791.
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  8.  33
    The Wrongfulness Constraint in Criminalisation.Antje du Bois-Pedain - 2014 - Criminal Law and Philosophy 8 (1):149-169.
    If conduct must be wrongful in order to be justifiably criminalised, how should its wrongfulness be established? I examine a conception of wrongfulness put forward by A. P. Simester, which makes wrongfulness turn on whether the reasons favouring the performance of an action are, all things considered, defeated by the reasons against its performance. I argue that such a view can only generate appropriate substantive constraints in the context of criminalisation if it can distinguish between the sorts of reasons (...)
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  9.  20
    Surveillance Technologies, Wrongful Criminalisation, and the Presumption of Innocence.Katerina Hadjimatheou - 2017 - Philosophy and Technology 30 (1):39-54.
    The potential of surveillance practices to undermine the presumption of innocence is a growing concern amongst critics of surveillance. This paper attempts to assess the impact of surveillance on the presumption of innocence. It defends an account of the presumption of innocence as a protection against wrongful criminalisation against alternatives, and considers both the ways in which surveillance might undermine that protection and the—hitherto overlooked—ways in which it might promote it. It draws on empirical work on the causes of (...)
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  10.  8
    Criminalising Contagion: The Criminal Law and Disease Transmission.Hannah Quirk - 2013 - Medical Humanities 39 (2):75-76.
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  11. Criminalising Medical Malpractice.Margaret Brazier & Allen & Neil - 2007 - In Charles A. Erin & Suzanne Ost (eds.), The Criminal Justice System and Health Care. Oxford University Press.
     
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  12.  8
    Criminalising Computer Misconduct:Legal and Philosophical Concerns.Dr Gregor Urbas - 2004 - Acm Sigcas Computers and Society 34 (1):5.
    Computer misconduct has been a part of computing and electronic communication since its early development. The process of criminalisation has followed in a some what sporadic and uneven way, with notable discrepancies between jurisdictions both internationally and within countries. In Australia, there has been some movement towards uniformity with the enactment of the Cybercrime Act 2001 and its equivalents in several States and Territories. Internati onally, there is gradual convergence towards models such as the Council of Europe¿s Convention on (...)
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  13.  12
    The Wrongfulness Constraint in Criminalisation.Antje Bois-Pedain - 2014 - Criminal Law and Philosophy 8 (1):149-169.
    If conduct must be wrongful in order to be justifiably criminalised, how should its wrongfulness be established? I examine a conception of wrongfulness put forward by A. P. Simester, which makes wrongfulness turn on whether the reasons favouring the performance of an action are, all things considered, defeated by the reasons against its performance. I argue that such a view can only generate appropriate substantive constraints in the context of criminalisation if it can distinguish between the sorts of reasons (...)
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  14.  9
    Crimes, Harms, and Wrongs: On the Principles of Criminalisation.A. P. Simester - 2011 - Hart.
    When should we make use of the criminal law? Crimes, Harms, and Wrongs offers a philosophical analysis of the nature and ethical limits of criminalisation. The authors explore the scope of harm-based prohibitions, proscriptions of offensive behaviour, and 'paternalistic' prohibitions aimed at preventing self-harm, developing guiding principles for these various grounds of state prohibition. Both authors have written extensively in the field. They have produced an integrated, accessible, philosophically-sophisticated account that will be of great interest to legal academics, philosophers, (...)
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  15. Criminalising the One Who Really Cared.J. Bridgeman - 1998 - Feminist Legal Studies 6 (2):245-256.
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  16. Criminalisation and the Role of Theory.A. Simester & A. Smith - 1996 - In A. P. Simester & A. T. H. Smith (eds.), Harm and Culpability. Oxford University Press. pp. 1--17.
     
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  17.  5
    Criminalising Contagion.Catherine Stanton - 2014 - Journal of Medical Ethics 40 (12):792-792.
  18.  2
    Evaluating Wrongness Constraints on Criminalisation.Adam R. Pearce - forthcoming - Criminal Law and Philosophy:1-20.
    Some claim that criminalisation is morally permissible only when the conduct criminalised is morally wrong. This claim can be disambiguated into at least three principles which differ according to whether, and how, wrongness is dependent on details of the law: the strong constraint, the moderate constraint, and the weak constraint. In this paper I argue that the weak wrongness constraint is preferable to the strong and moderate constraints. That is, we should prefer the view that conduct criminalised must be (...)
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  19.  20
    The Philosophy of Criminalisation: A Review of Duff Et Al.'s Criminalisation Series. [REVIEW]Paul McGorrery - 2018 - Criminal Law and Philosophy 12 (1):185-207.
    The philosophy of criminalisation has been a neglected topic for some time now. A considerable amount of modern criminal justice literature is dedicated to preventing crime and punishing crime, but precious little attention is dedicated to the preliminary question: what should be a crime? Over the last decade, five editors and dozens of authors published a four-part series of edited essays in an attempt to answer that question. The present article is a hybrid of sorts: in one sense, it (...)
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  20.  12
    Rethinking the Wrongness Constraint on Criminalisation.Andrew Cornford - 2017 - Law and Philosophy 36 (6):615-649.
    Orthodox thought holds that criminalisation should be subject to a wrongness constraint: that is, that conduct may be criminalised only if it is wrongful. This article argues that this principle is false, at least as it is usually understood. On the one hand, the wrongness constraint seems to rest on solid foundations. To criminalise conduct is to facilitate its condemnation and punishment; to coerce citizens against it; and to portray it as wrongful. All of these actions are presumptively impermissible (...)
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  21. Medicalising Crime? Criminalising Health?Jonathan Montgomery - 2007 - In Charles A. Erin & Suzanne Ost (eds.), The Criminal Justice System and Health Care. Oxford University Press.
     
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  22.  13
    Civilisation Through Criminalisation: Understanding Liberalism’s Dystopian Tendency.Peter Ramsay - 2019 - Jurisprudence 10 (1):91-102.
    Volume 10, Issue 1, March 2019, Page 91-102.
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  23.  51
    Review of Criminalisation and Advanced Marginality: Critically Exploring the Work of Loic Wacquant. [REVIEW]Melissa J. Dearey - 2013 - Studies in Social Justice 7 (1):173-174.
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  24.  47
    To Buy or Not to Buy? Vulnerability and the Criminalisation of Commercial BDSM.Sharon Cowan - 2012 - Feminist Legal Studies 20 (3):263-279.
    This paper examines the interaction of law and policy-making on prostitution, with that of BDSM (bondage and discipline, sadism and masochism). Recent policy and legal shifts in the UK mark out prostitutes as vulnerable and in need of ‘rescue’. BDSM that amounts to actual bodily harm is unlawful in the UK, and calls to decriminalise it are often met with fears that participants will be left vulnerable to abuse. Where women sell BDSM sex, even more complex questions of choice, exploitation, (...)
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  25. Non À la Criminalisation de la Question Sociale.P. Marliere - forthcoming - Multitudes.
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  26.  46
    Comment on Andreas von Hirsch: The Roles of Harm and Wrongdoing in Criminalisation Theory.Gerhard Seher - 2014 - Criminal Law and Philosophy 8 (1):257-264.
    Whereas liberals tend to emphasize harm as the decisive criterion for legitimizing criminalisation, moralists take a qualified notion of wrongfulness as sufficient even when no harm is at hand. This comment takes up Andreas von Hirsch ’s “dual element approach” requiring both harm and wrongfulness as necessary conditions for criminalisation and argues that Joel Feinberg’s account of harming as violation of moral rights is perfectly compatible with it. Subsequently, two issues from the liberalism-moralism debate on criminalisation are (...)
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  27.  28
    Master Principles of Criminalisation.James Edwards - 2016 - Jurisprudence 7 (1):138-148.
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  28.  80
    Theories of Criminalization: Comments on A.P. Simester/Andreas von Hirsch: Crimes, Harms and Wrongs. On the Principles of Criminalisation. Hart Publishing: Oxford and Portland, Oregon. 2011.Tatjana Hörnle - 2016 - Criminal Law and Philosophy 10 (2):301-314.
    In this article, I comment on Simester and von Hirsch’s theory of criminalization and discuss general principles of criminalization. After some brief comments on punishment theories and the role of moral wrongdoing, I examine main lines of contemporary criminalization theories which tend to focus on the issues of harm, offense, paternalism and side-constraints. One of the points of disagreement with Simester and von Hirsch concerns the role of the harm principle. I rely on a straightforward normative concept of “rights of (...)
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  29.  24
    Discussion Deconstruction, Criminalisation and the Criminal Law: A Reply to Pavlich’s ‘The Lore of Criminal Accusation’.Erik Claes - 2007 - Criminal Law and Philosophy 1 (1):99-105.
  30.  15
    Non-Culpable Ignorance and HIV Criminalisation.Jessica Flanigan - 2014 - Journal of Medical Ethics 40 (12):798-801.
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  31.  18
    Legislative Epidemics: The Role of Model Law in the Transnational Trend to Criminalise HIV Transmission.Daniel Grace - 2013 - Medical Humanities 39 (2):77-84.
    HIV-related state laws are being created transnationally though the use of omnibus model laws. In 2004, the US Agency for International Development funded the creation of one such guidance text known as the USAID/Action for West Africa Region Model Law, or N'Djamena Model Law, which led to the rapid spread of HIV/AIDS laws, including the criminalisation of HIV transmission, across much of West and Central Africa . In this article, I explicate how an epidemic of highly problematic legislation spread (...)
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  32.  21
    Asylum Law or Criminal Law: Blame, Deterrence and the Criminalisation of the Asylum.Paresh Kathrani - 2011 - Jurisprudencija: Mokslo darbu žurnalas 18 (4):1543-1554.
    Although the Refugee Convention 1951 generally provided that contracting states should recognise those who came within its definition as refugees, it did not prescribe how contracting states should determine this in order to enable them to balance this obligation with their national interests. However, evidence from the background and drafting of the Refugee Convention 1951 suggests that the provisions that a contracting states would implement in order to protect its interests would be commensurate with the human rights spirit of the (...)
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  33.  35
    Symposium on Andrew Simester and Andreas von Hirsch, Crimes, Harms, and Wrongs: On the Principles of Criminalisation.Matt Matravers - 2016 - Criminal Law and Philosophy 10 (2):297-299.
    Andrew Simester and Andreas von Hirsch’s Crimes, Harms, and Wrongs: On the Principles of Criminalisation (Simester and von Hirsch 2011) is an important contribution to the philosophical debate over the nature and ethical limits of criminalisation. As they note in their reply in this symposium, one of the novel aspects of their account is that they do not advance one “unified, grand theory”. Rather, they analyse each ground of criminal prohibition—wrongfulness, harm-based, offense, and paternalistic prohibitions aimed at preventing (...)
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  34.  1
    Gender Overdetermination and Resistance: The Case of Criminalised Women.Maureen Norton-Hawk & Susan Sered - 2011 - Feminist Theory 12 (3):317-333.
    This article explores the notion of gender overdetermination in relation to a community of criminalised women in Massachusetts. Re-examining classic writings on overdetermination by Louis Althusser, Sigmund Freud, Frantz Fanon and Jean-Paul Sartre, we query the notion of gender overdetermination and posit it as an effective lens for thinking about the persistence of gender as a social construct. The combination of the structural processes of overdetermination with the discursive and ideological power of overdetermination complicates and reduces possibilities and effectiveness of (...)
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  35. Sumak Kawsay, Coloniality and the Criminalisation of Violence Against Women in Ecuador.Silvana Tapia Tapia - 2016 - Feminist Theory 17 (2):141-156.
    This article asks if the incorporation of Sumak Kawsay, a concept from Andean philosophy, into the Constitution of Ecuador, has impacted the legal regulation of violence against women. It examines the trajectory of penal reform in the field of domestic violence and suggests that the decolonial shift in the Constitution has failed to significantly disrupt the dominant framework of penality in which gender violence regulation is inscribed. At the same time, feminist demands have been reframed through the formations of criminal (...)
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  36.  2
    Punishing Mothers for Men’s Violence: Failure to Protect Legislation and the Criminalisation of Abused Women.Sarah Singh - 2021 - Feminist Legal Studies 29 (2):181-204.
    This article explores the gender dynamics of ‘causing or allowing a child to die’, contrary to the Domestic Violence, Crime and Victims Act 2004, section 5. This offence was intended to allow for prosecution where a child had been killed and it was uncertain who had killed him/her, but also to allow for prosecution of non-violent defendants who failed to protect him/her. More women than men have been charged and convicted of this offence signifying a reversal of usual patterns of (...)
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  37.  20
    On the Legitimate Objectives of Criminalisation.A. P. Simester & Andreas von Hirsch - 2016 - Criminal Law and Philosophy 10 (2):367-379.
    We discuss and respond to the contributions of Tatjana Hörnle, John Kleinig, and John Stanton-Ife, and clarify some aspects of the arguments made in Crimes, Harms, and Wrongs.
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  38.  12
    On the Legitimate Objectives of Criminalisation.A. P. Simester & Andreas Hirsch - 2016 - Criminal Law and Philosophy 10 (2):367-379.
    We discuss and respond to the contributions of Tatjana Hörnle, John Kleinig, and John Stanton-Ife, and clarify some aspects of the arguments made in Crimes, Harms, and Wrongs.
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  39. ""2, 2007, From Academic Search Complete Database." Criminalising Computer Misconduct: Legal and Philosophical Concerns" Urbas D. [REVIEW]Recuperado September - 2004 - Acm Sigcas Computers and Society 34 (1):5.
  40. Book Review: Taking Stock of Antisocial Behaviour Policies: P. Squires, Ed. ASBO Nation: The Criminalisation of Nuisance Bristol: Policy Press, 2008, 383 Pp., ISBN 978-1-84742-027-5. [REVIEW]Kay Tisdall - 2009 - European Journal of Women's Studies 16 (3):277-279.
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  41. Prostitution, Disability and Prohibition.Frej Klem Thomsen - 2015 - Journal of Medical Ethics 41 (6):451-459.
    Criminalisation of prostitution, and minority rights for disabled persons, are important contemporary political issues. The article examines their intersection by analysing the conditions and arguments for making a legal exception for disabled persons to a general prohibition against purchasing sexual services. It explores the badness of prostitution, focusing on and discussing the argument that prostitution harms prostitutes, considers forms of regulation and the arguments for and against with emphasis on a liberty-based objection to prohibition, and finally presents and analyses (...)
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  42.  78
    What is the Harm Principle For?John Stanton-Ife - 2016 - Criminal Law and Philosophy 10 (2):329-353.
    In their excellent monograph, Crimes, Harms and Wrongs, Andrew Simester and Andreas von Hirsch argue for an account of legitimate criminalisation based on wrongfulness, the Harm Principle and the Offence Principle, while they reject an independent anti-paternalism principle. To put it at its simplest my aim in the present paper is to examine the relationship between ‘the harms’ and ‘the wrongs’ of the authors’ title. I begin by comparing the authors’ version of the Harm and Offence Principle with some (...)
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  43.  32
    The Paternalistic Principle.John Kleinig - 2016 - Criminal Law and Philosophy 10 (2):315-327.
    In this paper, I critique one aspect of Simester and von Hirsch’s, Crimes, Harms, and Wrongs—their recognition of harm and offence principles, but failure to construct a paternalistic principle, despite their willingness to countenance some small measure of criminal paternalism. Construction of such a principle would have clarified the problems of as well as the limits to criminalising paternalism.
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  44.  47
    Coming Clean About the Criminal Law.James Edwards - 2011 - Criminal Law and Philosophy 5 (3):315-332.
    This paper addresses three doctrinal phenomena of which it finds evidence in English law: the quiet extension of the criminal law so as to criminalise that which is by no means an obvious offence; the creation of offences the goal of which is not to guide potential offenders away from crime; and the existence of offending behaviour which is not itself thought to justify arrest or prosecution. While such phenomena have already been criticised by other criminal law theorists, this paper (...)
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  45.  28
    Wrongfulness and Prohibitions.J. R. Edwards & A. P. Simester - 2014 - Criminal Law and Philosophy 8 (1):171-186.
    This paper responds to Antje du-Bois Pedain’s discussion of the wrongfulness constraint on the criminal law. Du-Bois Pedain argues that the constraint is best interpreted as stating that φing is legitimately criminalised only if φing is wrongful for other-regarding reasons. We take issue with du-Bois Pedain’s arguments. In our view, it is neither a necessary nor sufficient condition of legitimate criminalisation that φing is wrongful in du-Bois Pedain’s sense. Rather, it is a necessary condition of legitimate criminalisation that (...)
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  46.  52
    Criminal Liability as a Last Resort (Ultima Ratio): Theory and Reality.Oleg Fedosiuk - 2012 - Jurisprudencija: Mokslo darbu žurnalas 19 (2):715-738.
    The modern Lithuanian legal doctrine recognises that criminal liability is a last resort (ultima ratio) protecting the society from various law violations. This idea has got deep roots in criminology and is obviously based on the position of rational approach towards the state criminal policy. However, it is not clear whether it is of obligatory legal status to the legislature and the courts. This article attempts to present the idea of a last resort as a concept based on the constitutional (...)
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  47.  20
    Persistence and Change in Morality Policy: The Role of the Catholic Church in the Politics of Abortion in Ireland and Poland.Monika Ewa Kaminska & Sydney Calkin - 2020 - Feminist Review 124 (1):86-102.
    On the issue of abortion, Ireland and Poland have been among the most conservative countries in Europe. Their legal and cultural approaches to this issue have been deeply influenced by the institution of the Catholic Church and its purported role as a defender of an authentic national identity. However, their political climates for abortion reform are increasingly divergent: Ireland has liberalised its abortion law substantially since 2018, while Poland is moving towards further criminalisation with the repeated introduction of restrictive (...)
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  48.  30
    Gross Negligence Manslaughter and Doctors: Ethical Concerns Following the Case of Dr Bawa-Garba.Ash Samanta & Jo Samanta - 2019 - Journal of Medical Ethics 45 (1):10-14.
    Dr Bawa-Garba, a senior paediatric trainee who had been involved in the care of a child who died shortly after admission to hospital, was convicted of gross negligence manslaughter and subsequently erased from the medical register. We argue that criminalisation of doctors in this way is fraught with ethical tensions at levels of individual blameworthiness, systemic failures, professionalism, patient safety and at the interface of the regulator and doctor. The current response to alleged manslaughter during clinical care is not (...)
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  49. Collective Action and Individual Choice.Jonny Anomaly - 2013 - Journal of Medical Ethics 39 (4):752-756.
    Governments across the globe have squandered treasure and imprisoned millions of their own citizens by criminalising the use and sale of recreational drugs. But use of these drugs has remained relatively constant, and the primary victims are the users themselves. Meanwhile, antimicrobial drugs that once had the power to cure infections are losing their ability to do so, compromising the health of people around the world. The thesis of this essay is that policymakers should stop wasting resources trying to fight (...)
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  50. Public and Private Wrongs.R. A. Duff & Sandra Marshall - 2010 - In James Chalmers, Fiona Leverick & Lindsay Farmer (eds.), Essays in Criminal Law in Honour of Sir Gerald Gordon. Edinburgh: Edinburhg University Press. pp. 70-85.
    Gordon's emphasizes that the process of prosecution is crucial to the idea of crime. One who commits a public wrong is properly called to public account for it, and the criminal trial constitutes such a public calling to account. The state is the proper prosecutor of crimes: since a crime is ‘our’ wrong, rather than only the victim's wrong, it is appropriate that we should prosecute it, collectively. The case is not simply V the victim, or P the plaintiff, against (...)
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