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Criminal Law (criminal + law)
Selected AbstractsThe Scope of Criminal Law and Criminal Sanctions: An Economic View and Policy ImplicationsJOURNAL OF LAW AND SOCIETY, Issue 3 2008Roger Bowles This paper considers why some harm-generating activities are controlled by criminal law and criminal sanctions while others are subject to some other mechanism such as civil law, administrative law, regulation or the tax system. It looks at the question from the perspective of the law and economics approach. We seek to identify the comparative benefits of using the criminal law relative to other enforcement mechanisms and , more broadly , why certain specific behaviours are criminalized. The paper argues that an economic approach emphasizing the relative merits of alternative legal instruments for bringing about harm reduction can provide an explanation for a number of recent legal developments. It argues also that the willingness of legislators to combine the use of sanctions traditionally used in one area of the law with sanctions from other areas is more readily explicable in economic terms than in other terms. [source] The Difference Uniforms Make: Collective Violence in Criminal Law and WarPHILOSOPHY AND PUBLIC AFFAIRS, Issue 2 2005CHRISTOPHER KUTZ First page of article [source] Description, Ascription, and Action in the Criminal LawRATIO JURIS, Issue 2 2007LUÍS DUARTE D'ALMEIDA My suggestion is developed in Part III: As it depends on some reformulation and endorsement of Hart's ideas, I discuss the "ascriptive" and "defeasible" character of the concept of action in Part II, and therein try to dismiss some of the severe criticism that ascriptivism has given rise to since its proposal. This criticism, I shall argue, often relies upon a poor or uncharitable interpretation of Hart's instrumental characterization of the "defeasibility" of legal concepts; for this reason, Part I is dedicated to a reconstructive elucidation of Hart's account of "conceptual defeasibility."2 [source] The Criminal Responsibility of Senior Political and Military Leaders as Principles to International Crimes (Studies in International and Comparative Criminal Law, No.4) by H. OlásoloTHE HOWARD JOURNAL OF CRIMINAL JUSTICE, Issue 4 2010AMRITA MUKHERJEE No abstract is available for this article. [source] Fair Labelling in Criminal LawTHE MODERN LAW REVIEW, Issue 2 2008James Chalmers ,Fair labelling' has become common currency in criminal law scholarship over recent decades, but the principle's scope and justification has never been analysed in detail. Basic questions remain unanswered, such as the intended audience for these labels and whether they assume the same importance in respect of both offences and defences. This article traces the intellectual history of the principle and examines its possible justifications in respect of offence labelling, noting that labelling is important in two distinct senses: that of description, and that of differentiation. It goes on to sketch out some considerations which are of importance in the principle's application, before concluding with a discussion of its applicability to defences. [source] The Case for a Rational Reconstruction of Consent in Criminal LawTHE MODERN LAW REVIEW, Issue 2 2007Catherine Elliott This article argues for consistency in criminal law and the need for ,rational reconstruction' of the law where necessary to achieve this. It focuses Parliament's failure to respect the need for consistency by passing a statutory definition of consent in the Sexual Offences Act 2003 which appears to apply only to sexual offences. As a result, the law on consent risks being a patchwork of statute and ad hoc case law, without any overarching principle to deal with new situations and different offences. The consequent lack of certainty, accessibility, predictability and fairness is compared to the standards of the European Convention on Human Rights. The statutory definition of consent in the context of the sexual offences is assessed critically as a model which could be used in offences against the person and property offences. The article concludes that until Parliament responds to the need for certainty and consistency by legislating on consent, there can be no rational reconstruction of consent under the Sexual Offences Act 2003. [source] The Responsible Subject As Citizen: Criminal Law, Democracy And The Welfare StateTHE MODERN LAW REVIEW, Issue 1 2006Article first published online: 9 JAN 200, Peter Ramsay This paper seeks to explain two problems posed by the history of criminal law doctrine by situating them in the context of the political sociology of citizenship. First, the paper outlines the logical connection between the rise to doctrinal orthodoxy of the idea of the responsible subject and the contemporaneous emergence of universal political citizenship. Secondly, it argues that subjectivist orthodoxy in doctrine may be reconciled with the apparently antithetical forms of regulatory strict liability law within the terms of ,modern democratic citizenship' as the latter were conceptualised by T. H. Marshall. Finally, by means of a comparison with Alan Brudner's recent philosophical rationalisation of the modern criminal law, it proposes that situating the criminal law in its environment of citizenship will help us to understand better the tensions that underlie contemporary challenges to its doctrine. [source] From Criminal Law to Legal Theory: The Mysterious Case of the Reasonable Glue SnifferTHE MODERN LAW REVIEW, Issue 4 2002Alan Norrie The modern idea of criminal justice is organised around a series of antinomies which include the formal and the substantive, the universal and the particular, the individual and the social. This paper examines the place of these antinomies in four different but connected settings: the plight of the humane judge, the classical enlightenment theory of retributive punishment, the judgment of provoked killing, and the critique of orthodox subjectivism in the Anglo,American law. The play of the universal and the particular and the formal and substantive within law reflects and embodies the underlying antinomy of the individual and the social , even where it does not mention it. The qualitative moment is preserved in all quantification, as the substrate of that which is to be quantified. [source] Towards a Theory of Criminal Law?ARISTOTELIAN SOCIETY SUPPLEMENTARY VOLUME, Issue 1 2010R. A. Duff After an initial discussion (§i) of what a theory of criminal law might amount to, I sketch (§ii) the proper aims of a liberal, republican criminal law, and discuss (§§iii,iv) two central features of such a criminal law: that it deals with public wrongs, and provides for those who perpetrate such wrongs to be called to public account. §v explains why a liberal republic should maintain such a system of criminal law, and §vi tackles the issue of criminalization,of how we should determine the proper scope of the criminal law. [source] Subsidiarity in the Area of EU Justice and Home Affairs Law,A Lost Cause?EUROPEAN LAW JOURNAL, Issue 3 2009Ester Herlin-Karnell This article intends to highlight the concept of subsidiarity in the area of the third pillar and EU criminal law more generally. In doing so, the article tries to show that criminal law could and should be seen as imbued with ,subsidiarity' and, more specifically, that it could be viewed as an expression of the principle of ultima ratio,a minimalism approach,in criminal law. Accordingly, the article asks why subsidiarity appears to be forgotten in third pillar matters despite its important function in this area. Moreover, the article confronts such a desired application of subsidiarity in the context of established EC law doctrine, by questioning whether it is possible simply to transplant the supranational discussion into the terrain of criminal law. Further, the article explores the function of Article 47 EU as the watchdog of the supranational sphere and discusses also briefly the phenomenon of enhanced cooperation in relation to the principle of subsidiarity in the domain of EU Justice and Home Affairs. [source] The Scope of Criminal Law and Criminal Sanctions: An Economic View and Policy ImplicationsJOURNAL OF LAW AND SOCIETY, Issue 3 2008Roger Bowles This paper considers why some harm-generating activities are controlled by criminal law and criminal sanctions while others are subject to some other mechanism such as civil law, administrative law, regulation or the tax system. It looks at the question from the perspective of the law and economics approach. We seek to identify the comparative benefits of using the criminal law relative to other enforcement mechanisms and , more broadly , why certain specific behaviours are criminalized. The paper argues that an economic approach emphasizing the relative merits of alternative legal instruments for bringing about harm reduction can provide an explanation for a number of recent legal developments. It argues also that the willingness of legislators to combine the use of sanctions traditionally used in one area of the law with sanctions from other areas is more readily explicable in economic terms than in other terms. [source] Born unto Brothels,Toward a Legal Ethnography of Sex Work in an Indian Red-Light AreaLAW & SOCIAL INQUIRY, Issue 3 2008Prabha Kotiswaran The global sex panic around sex work and trafficking has fostered prostitution law reform worldwide. While the normative status of sex work remains deeply contested, abolitionists and sex work advocates alike display an unwavering faith in the power of criminal law; for abolitionists, strictly enforced criminal laws can eliminate sex markets, whereas for sex work advocates, decriminalization can empower sex workers. I problematize both narratives by delineating the political economy and legal ethnography of Sonagachi, one of India's largest red-light areas. I show how within Sonagachi there exist highly internally differentiated groups of stakeholders, including sex workers, who, variously endowed by a plural rule network,consisting of formal legal rules, informal social norms, and market structures,routinely enter into bargains in the shadow of the criminal law whose outcomes cannot be determined a priori. I highlight the complex relationship between criminal law and sex markets by analyzing the distributional effects of criminalizing customers on Sonagachi's sex industry. [source] Swaying the Hand of Justice: The Internal and External Dynamics of Regime Change at the International Criminal Tribunal for the Former YugoslaviaLAW & SOCIAL INQUIRY, Issue 3 2006John Hagan This article develops a conflict approach for studying the field of international criminal law. Focusing on the International Criminal Tribunal for the Former Yugoslavia, we draw on Burawoy's (2003) elaboration of reflexive ethnography to determine how external political changes affect the work of an international legal institution. We explore how political frameworks of legal liberalism, ad hoc legalism, and legal exceptionalism result in internal office, organizational, and normative changes within this Tribunal, thereby linking national political transformations with the construction of the global. Drawing on rolling field interviews and a two-wave panel survey, we conclude that the claims to universals that underwrite transnational legal fields cannot be understood solely through an analysis of external political forces, but must be combined with attention to how these are refracted through internal organizational change within international institutions. [source] Religion, Historical Contingencies, and Institutional Conditions of Criminal Punishment: The German Case and BeyondLAW & SOCIAL INQUIRY, Issue 2 2004Joachim J. Savelsberg Religion and historical contingencies help explain cross-national and historic variation of criminal law and punishment. Case studies from German history suggest: First, the Calvinist affiliation of early Prussian monarchs advanced the centralization of power, rationalization of government bureaucracy, and elements of the welfare state, factors that are likely to affect punishment. Second, the dominant position of Lutheranism in the German population advanced the institutionalization of a separation of forgiveness in the private sphere versus punishment of "outer behavior" by the state. Third, these principles became secularized in philosophy, jurisprudence, and nineteenth-century criminal codes. Fourth, partly due to historical contingencies, these codes remained in effect into post,World War II Germany. Fifth, the experience of the Nazi regime motivated major changes in criminal law, legal thought, public opinion, and religious ideas about punishment in the Federal Republic of Germany. Religion thus directly and indirectly affects criminal law and punishment, in interaction with historical contingencies, institutional conditions of the state, and other structural factors. [source] Negotiating the Boundaries of Crime and Culture: A Sociolegal Perspective on Cultural Defense StrategiesLAW & SOCIAL INQUIRY, Issue 1 2003Kay L. Levine In this article 1 offer a principled strategy for the courts to identify and to handle the uses of culture as a defense in a criminal proceeding. I begin by discussing the relationship between culture and behavior illuminated by sociologists of culture. I then explain the three categories into which cultural defenses fall,cultural reason, cultural requirement, and cultural tolerance,and the response of criminal courts in the United States to each. I argue that where culture offers an alternative explanation of the defendant's intent, it is highly relevant to determinations of criminal liability. However, where a defendant uses culture only to explain why he wanted to harm the victim and asks that the court be tolerant of such behavior, considerations of culture should not be allowed. In reaching this conclusion, I draw on theories of multiculturalism to consider the benefits and burdens of maintaining the facade of a "cultureless" criminal law in an increasingly heterogeneous society. [source] Criminalising fabricated images of child pornography: a matter of harm or morality?LEGAL STUDIES, Issue 2 2010Suzanne Ost This paper addresses the criminalisation of fabricated images of child pornography. Focusing on the new offence of possessing ,non-photographic pornographic images of children' (NPPIC) under the Coroners and Justice Act 2009, it assesses whether harm- and morality-based arguments legitimate the extension of the criminal law to this activity. I contend that harm may be caused to children by NPPIC that are depictions of real child sexual abuse, and images that depict the fantasy sexual abuse of a real, recognisable child. However, it is extremely difficult to find a legitimate basis for prohibiting the possession of fantasy, completely fabricated NPPIC through a reasoned application of the harm principle and thus criminalisation of such images is not justified. Adopting a liberal perspective, I argue that moral harm-based arguments ultimately fail to convince, since legal moralism or moral paternalism should not be acceptable grounds for criminalisation. I conclude that a stronger case for criminalisation would have been made had the offence been limited to NPPIC depicting real child sexual abuse, or featuring real, recognisable children, or targeted at creators and distributors rather than possessors. [source] Corporate criminal law and organization incentives: a managerial perspectiveMANAGERIAL AND DECISION ECONOMICS, Issue 6 2000Nuno Garoupa Corporate criminal liability puts a serious challenge to the economic theory of enforcement. Are corporate crimes different from other crimes? Are these crimes best deterred by punishing individuals, punishing corporations, or both? What is optimal structure of sanctions? Should corporate liability be criminal or civil? This paper has two major contributions to the literature. First, it provides a common analytical framework to most results presented and largely discussed in the field. Second, by making use of the framework, we provide new insights into how corporations should be punished for the offenses committed by their employees. Copyright © 2000 John Wiley & Sons, Ltd. [source] Legal and Moral ResponsibilityPHILOSOPHY COMPASS (ELECTRONIC), Issue 6 2009Antony Duff The paper begins with the plausible view that criminal responsibility should track moral responsibility, and explains its plausibility. A necessary distinction is then drawn between liability and answerability as two dimensions of responsibility, and is shown to underpin the distinction in criminal law between offences and defences. This enables us to distinguish strict liability from strict answerability, and to see that whilst strict criminal liability seems inconsistent with the principle that criminal responsibility should track moral responsibility, strict criminal answerability is not. We must ask, therefore, whether, when and why strict criminal responsibility is unacceptable. [source] Protocols, practices, and the reproduction of technique in molecular biology*THE BRITISH JOURNAL OF SOCIOLOGY, Issue 2 2002Michael Lynch ABSTRACT Protocols are one of the main organizational resources in molecular biology. They are written instructions that specify ingredients, equipment, and sequences of steps for making technical preparations. Some protocols are published in widely used manuals, while others are hand-written variants used by particular laboratories and individual technicians. It is widely understood, both in molecular biology and in social studies of science, that protocols do not describe exactly what practitioners do in the laboratory workplace. In social studies of science, the difference between protocols and the actual practices of doing them often is used to set up ironic contrasts between ,messy' laboratory practices and the appearance of technical order. Alternatively, in ethnomethodological studies of work, the difference is examined as a constitutive feature, both of the livedwork of doing technical projects, and of the administrative work of regulating and evaluating such projects. The present article takes its point of departure from ethnomethodology, and begins with a discussion of local problems with performing molecular biology protocols on specific occasions. The discussion then moves to particular cases in criminal law in which defense attorneys crossexamine forensic technicians and lab administrators. In these interrogations, the distinction between protocols and actual practices animates the dialogue and becomes consequential for judgments in the case at hand. The article concludes with a discussion of administrative science: the work of treating protocols and paper trails as proxies for actual ,scientific' practices. [source] Historicising Criminalisation: Conceptual and Empirical IssuesTHE MODERN LAW REVIEW, Issue 6 2009Nicola Lacey This paper charts a renaissance in scholarly analysis of criminalisation, and suggests that we do not have the conceptual tools or empirical knowledge to make the claims about ,overcriminalisation' which motivate much of this scholarship. My argument gives further shape to projects under the umbrella of criminalisation, setting out some of the conceptual issues to be resolved before we can work towards an adequate interpretive, and normative, vision of how criminal law has been and might be used. The paper elaborates a number of projects in ,criminalisation scholarship', and suggests there is a failure adequately to distinguish the different senses of ,criminalisation' in the literature, or the varying methods which might be applied within historical, interpretive, analytic and normative studies of criminalisation. In conclusion, the paper argues for a certain genre of criminalisation scholarship, and for a multi-disciplinary criminalisation research agenda informed by history, sociology and political science as much as by law, criminology and philosophy. [source] The Case for a Rational Reconstruction of Consent in Criminal LawTHE MODERN LAW REVIEW, Issue 2 2007Catherine Elliott This article argues for consistency in criminal law and the need for ,rational reconstruction' of the law where necessary to achieve this. It focuses Parliament's failure to respect the need for consistency by passing a statutory definition of consent in the Sexual Offences Act 2003 which appears to apply only to sexual offences. As a result, the law on consent risks being a patchwork of statute and ad hoc case law, without any overarching principle to deal with new situations and different offences. The consequent lack of certainty, accessibility, predictability and fairness is compared to the standards of the European Convention on Human Rights. The statutory definition of consent in the context of the sexual offences is assessed critically as a model which could be used in offences against the person and property offences. The article concludes that until Parliament responds to the need for certainty and consistency by legislating on consent, there can be no rational reconstruction of consent under the Sexual Offences Act 2003. [source] The House of Lords and the Northern Ireland Conflict , A SequelTHE MODERN LAW REVIEW, Issue 3 2006Brice Dickson This article begins by commenting on an analysis undertaken by the late Stephen Livingstone of 13 cases relating to the troubles in Northern Ireland decided by the House of Lords between 1969 and 1993. It then attempts to repeat the analysis in respect of 12 such cases decided between 1994 and 2005. Areas of law arising for consideration during both periods include the rules on the use of lethal force, aspects of substantive criminal law and criminal procedure and the rights of persons arrested or imprisoned. The more recent cases also raise fundamental questions concerning the status and meaning of the Good Friday Agreement of 1998. The article concludes that there has been a sea-change in the way the Law Lords have handled the Northern Irish cases. From treating them in a way which might have suggested a built-in bias in favour of police, army and government perspectives, they have moved to analysing the competing arguments in the light of more modern approaches to statutory interpretation, the rule of law and human rights. [source] The Responsible Subject As Citizen: Criminal Law, Democracy And The Welfare StateTHE MODERN LAW REVIEW, Issue 1 2006Article first published online: 9 JAN 200, Peter Ramsay This paper seeks to explain two problems posed by the history of criminal law doctrine by situating them in the context of the political sociology of citizenship. First, the paper outlines the logical connection between the rise to doctrinal orthodoxy of the idea of the responsible subject and the contemporaneous emergence of universal political citizenship. Secondly, it argues that subjectivist orthodoxy in doctrine may be reconciled with the apparently antithetical forms of regulatory strict liability law within the terms of ,modern democratic citizenship' as the latter were conceptualised by T. H. Marshall. Finally, by means of a comparison with Alan Brudner's recent philosophical rationalisation of the modern criminal law, it proposes that situating the criminal law in its environment of citizenship will help us to understand better the tensions that underlie contemporary challenges to its doctrine. [source] The Presumption of Innocence and the Human Rights ActTHE MODERN LAW REVIEW, Issue 3 2004Victor Tadros There has recently been a proliferation of case law dealing with potential inroads into the presumption of innocence in the criminal law of England and Wales, in the light of article 6(2) of the European Convention on Human Rights. This article is concerned with the nature of the presumption of innocence. It considers two central issues. The first is how the courts should address the question of when the presumption of innocence is interfered with. The second is the extent to which interference with the presumption of innocence may be justified on the grounds of proportionality. It is argued that the courts have not developed the appropriate concepts and principles properly to address these questions. [source] Towards a Theory of Criminal Law?ARISTOTELIAN SOCIETY SUPPLEMENTARY VOLUME, Issue 1 2010R. A. Duff After an initial discussion (§i) of what a theory of criminal law might amount to, I sketch (§ii) the proper aims of a liberal, republican criminal law, and discuss (§§iii,iv) two central features of such a criminal law: that it deals with public wrongs, and provides for those who perpetrate such wrongs to be called to public account. §v explains why a liberal republic should maintain such a system of criminal law, and §vi tackles the issue of criminalization,of how we should determine the proper scope of the criminal law. [source] Born unto Brothels,Toward a Legal Ethnography of Sex Work in an Indian Red-Light AreaLAW & SOCIAL INQUIRY, Issue 3 2008Prabha Kotiswaran The global sex panic around sex work and trafficking has fostered prostitution law reform worldwide. While the normative status of sex work remains deeply contested, abolitionists and sex work advocates alike display an unwavering faith in the power of criminal law; for abolitionists, strictly enforced criminal laws can eliminate sex markets, whereas for sex work advocates, decriminalization can empower sex workers. I problematize both narratives by delineating the political economy and legal ethnography of Sonagachi, one of India's largest red-light areas. I show how within Sonagachi there exist highly internally differentiated groups of stakeholders, including sex workers, who, variously endowed by a plural rule network,consisting of formal legal rules, informal social norms, and market structures,routinely enter into bargains in the shadow of the criminal law whose outcomes cannot be determined a priori. I highlight the complex relationship between criminal law and sex markets by analyzing the distributional effects of criminalizing customers on Sonagachi's sex industry. [source] The Agreement on Trade-Related Aspects of Intellectual Property Rights Flexibilities on Intellectual Property Enforcement: The World Trade Organization Panel Interpretation of China-Intellectual Property Enforcement of Criminal Measures and Its ImplicationsTHE JOURNAL OF WORLD INTELLECTUAL PROPERTY, Issue 5 2010Xuan Li Criminal procedure is one of the three major points in the China-Intellectual Property (IP) case brought about by the United States. A number of experts believed that United States failed on this point because of lack of sufficient evidence. However, the author is of the view that the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) text-based interpretation of IP enforcement flexibility served as the core of the panel decision. This article starts with the criminal thresholds of China's criminal laws, and focuses on analysing the interpretation by the panel on the scope of responsibility and its limitations as enshrined in article 61, which led to the conclusion that the essence of the dispute is how to interpret and determine "IP enforcement flexibility". On this basis, the article expounds the concept and content of the "IP enforcement flexibility" and highlights the implications of this concept on current international TRIPS-plus initiatives. Some implications are given on how the World Trade Organization members can take advantage of the enforcement flexibility to serve the needs of innovation and development in their own countries. [source] | |||||||||||||