Overcriminalization

The Limits of the Criminal Law

Author: Douglas Husak

Publisher: Oxford University Press

ISBN: 9780198043997

Category: Law

Page: 248

View: 7950

The United States today suffers from too much criminal law and too much punishment. Husak describes the phenomena in some detail and explores their relation, and why these trends produce massive injustice. His primary goal is to defend a set of constraints that limit the authority of states to enact and enforce penal offenses. The book urges the weight and relevance of this topic in the real world, and notes that most Anglo-American legal philosophers have neglected it. Husak's secondary goal is to situate this endeavor in criminal theory as traditionally construed. He argues that many of the resources to reduce the size and scope of the criminal law can be derived from within the criminal law itself-even though these resources have not been used explicitly for this purpose. Additional constraints emerge from a political view about the conditions under which important rights such as the right implicated by punishment-may be infringed. When conjoined, these constraints produce what Husak calls a minimalist theory of criminal liability. Husak applies these constraints to a handful of examples-most notably, to the justifiability of drug proscriptions.
Posted in Law

Overcriminalization

The Limits of the Criminal Law

Author: Douglas Husak

Publisher: Oxford University Press

ISBN: 0199886989

Category: Law

Page: 248

View: 3114

The United States today suffers from too much criminal law and too much punishment. Husak describes the phenomena in some detail and explores their relation, and why these trends produce massive injustice. His primary goal is to defend a set of constraints that limit the authority of states to enact and enforce penal offenses. The book urges the weight and relevance of this topic in the real world, and notes that most Anglo-American legal philosophers have neglected it. Husak's secondary goal is to situate this endeavor in criminal theory as traditionally construed. He argues that many of the resources to reduce the size and scope of the criminal law can be derived from within the criminal law itself-even though these resources have not been used explicitly for this purpose. Additional constraints emerge from a political view about the conditions under which important rights such as the right implicated by punishment-may be infringed. When conjoined, these constraints produce what Husak calls a minimalist theory of criminal liability. Husak applies these constraints to a handful of examples-most notably, to the justifiability of drug proscriptions.
Posted in Law

The Philosophy of Criminal Law

Selected Essays

Author: Douglas N. Husak

Publisher: Oxford University Press, USA

ISBN: 0199585032

Category: Law

Page: 458

View: 6884

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 major topics in the field, including the grounds of criminal liability, the significance of 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. Together, the essays present a desert-based analysis of issues in criminal theory that rejects the consequentialist approach more familiar among legal scholars. The foremost concern of these essays is to ensure that the principles and doctrines of the criminal law preserve justice and do not sacrifice individuals for the common welfare. Engagingly written, the essays are accessible to non-specialists and represent an excellent introduction to current issues and debates in the theory of criminal law.
Posted in Law

Crimes, Harms, and Wrongs

On the Principles of Criminalisation

Author: A P Simester,Andreas von Hirsch

Publisher: Bloomsbury Publishing

ISBN: 1847317774

Category: Law

Page: 258

View: 5675

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, and advanced students alike. 'this elegant, closely argued and convincing book is of great value and can be expected to be of lasting influence.' James Chalmers 'Crimes, Harms, and Wrongs . . . is a welcome addition to this field, and should clarify the reader's thinking on a breathtakingly broad range of issues. . . . This is an important book, and [its] consideration of not only Anglo-American theory and law, but also German legal doctrines and writings on criminalisation, should ensure that this debate reaches new heights in the future.' Findlay Stark 'the result of [the authors'] many decades of thought and writing on this fundamental subject is an integrated, accessible, philosophically sophisticated discussion of this subject.' Justice Gilles Renaud 'A.P. Simester and Andreas von Hirsch present an informed and systematic account of the principles that, in their view, should structure decisions about what to criminalize, and when.' Vincent Chiao 'an outstanding work, original in many respects and meticulous in its arguments. It represents the greatest advance on this subject since Feinberg's four volumes . . . an outstanding contribution to the re-invigorated criminalization debate.' Andrew Ashworth 'important, original, interesting, and often ingenious. Unlike some recent competitive books it has the virtue of making sound arguments. And like everything else the authors have written, it is a joy to read ...This is an absolutely wonderful book.' Douglas Husak
Posted in Law

Philosophical Foundations of Criminal Law

Author: R. A. Duff,Stuart Green

Publisher: OUP Oxford

ISBN: 0191654701

Category: Law

Page: 560

View: 9148

Twenty-five leading contemporary theorists of criminal law tackle a range of foundational issues about the proper aims and structure of the criminal law in a liberal democracy. The challenges facing criminal law are many. There are crises of over-criminalization and over-imprisonment; penal policy has become so politicized that it is difficult to find any clear consensus on what aims the criminal law can properly serve; governments seeking to protect their citizens in the face of a range of perceived threats have pushed the outer limits of criminal law and blurred its boundaries. To think clearly about the future of criminal law, and its role in a liberal society, foundational questions about its proper scope, structure, and operations must be re-examined. What kinds of conduct should be criminalized? What are the principles of criminal responsibility? How should offences and defences be defined? The criminal process and the criminal trial need to be studied closely, and the purposes and modes of punishment should be scrutinized. Such a re-examination must draw on the resources of various disciplines-notably law, political and moral philosophy, criminology and history; it must examine both the inner logic of criminal law and its place in a larger legal and political structure; it must attend to the growing field of international criminal law, it must consider how the criminal law can respond to the challenges of a changing world. Topics covered in this volume include the question of criminalization and the proper scope of the criminal law; the grounds of criminal responsibility; the ways in which offences and defences should be defined; the criminal process and its values; criminal punishment; the relationship between international criminal law and domestic criminal law. Together, the essays provide a picture of the exciting state of criminal law theory today, and the basis for further research and debate in the coming years.
Posted in Law

The Boundaries of the Criminal Law

Author: Antony Duff

Publisher: Oxford University Press

ISBN: 0199600554

Category: Law

Page: 267

View: 4814

This is the first book of a series on criminalization - examining the principles and goals that should guide what kinds of conduct are to be criminalized, and the forms that criminalization should take. The first volume studies the scope and boundaries of the criminal law - asking what principled limits might be placed on criminalizing behaviour.
Posted in Law

On Criminalization

An Essay in the Philosophy of Criminal Law

Author: J. Schonsheck

Publisher: Springer Science & Business Media

ISBN: 9780792326632

Category: Law

Page: 312

View: 3229

When thinking about justified criminalization - whether some action may morally be made a criminal offense - philosophers tend to rely upon `balancing'. Arguments favoring and opposing criminalization are `weighed' on a simple beam balance; the `weightier' reasons prevail. Jonathan Schonsheck argues that this methodology is deeply flawed; among other infirmities, it fosters the neglect of items essential to a defensible decision. He urges the adoption of `filtering' - a multi-step procedure which directs one to discuss the moral authority of the state, to consider measures less coercive than a criminal statute, and to investigate the pragmatic consequences of criminalization. This procedure, he argues, imposes a structure on disputes which facilitates philosophical progress. `Filtering' is then applied to an array of public policy issues, including laws which require the use of automobile seat belts and motorcycle helmets, and laws which prohibit the use of certain psychoactive substances (`drugs'). Additionally, the book addresses a number of more theoretical issues in the philosophy of the criminal law. Throughout, it engages the work of leading philosophers: Derek Parfit, Cass R. Sunstein, Richard J. Arneson, and especially Joel Feinberg.
Posted in Law

Answering for Crime

Responsibility and Liability in the Criminal Law

Author: R A Duff

Publisher: Bloomsbury Publishing

ISBN: 1847317170

Category: Law

Page: 342

View: 6172

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 criminalisation, which can now be cast as the question of what we should have to answer for, and to whom, under the threat of criminal conviction and punishment; on questions about the criminal trial, as a process through which defendants are called to answer, and about the conditions (bars to trial) given which a trial would be illegitimate; on questions about the structure of offences, the distinction between offences and defences, and the phenomena of strict liability and strict responsibility; and on questions about the structures of criminal defences. The net result is not a theory of criminal law; but it is an account of the structure of criminal law as an institution through which a liberal polity defines a realm of public wrongdoing, and calls those who perpetrate (or are accused of perpetrating) such wrongs to account.
Posted in Law

Ending Overcriminalization and Mass Incarceration

Hope from Civil Society

Author: Anthony B. Bradley

Publisher: Cambridge University Press

ISBN: 1108427545

Category: Law

Page: 225

View: 874

Personalism points to reforming criminal justice from the person up by changing criminal law and enlisting civil society institutions.
Posted in Law

Ignorance of Law

A Philosophical Inquiry

Author: Douglas Husak

Publisher: Oxford University Press

ISBN: 0190604700

Category: Law

Page: 272

View: 6021

This book argues that ignorance of law should usually be a complete excuse from criminal liability. It defends this conclusion by invoking two presumptions: first, the content of criminal law should conform to morality; second, mistakes of fact and mistakes of law should be treated symmetrically. The author grounds his position in an underlying theory of moral and criminal responsibility according to which blameworthiness consists in a defective response to the moral reasons one has. Since persons cannot be faulted for failing to respond to reasons for criminal liability they do not believe they have, then ignorance should almost always excuse. But persons are somewhat responsible for their wrongs when their mistakes of law are reckless, that is, when they consciously disregard a substantial and unjustifiable risk that their conduct might be wrong. This book illustrates this with examples and critiques the arguments to the contrary offered by criminal theorists and moral philosophers. It assesses the real-world implications for the U.S. system of criminal justice. The author describes connections between the problem of ignorance of law and other topics in moral and legal theory.
Posted in Law

Sex, Drugs, Death, and the Law

An Essay on Human Rights and Overcriminalization

Author: David A. J. Richards

Publisher: Rowman & Littlefield

ISBN: 9780847675258

Category: Law

Page: 316

View: 537

Among the most commonly argued legal questions are those involving "victimless" crimes consensual adult sexual relations (including homosexuality and prostitution), the use of drugs, and the right to die. How can they be distinguished from proper crimes, and how can we, as citizens, judge the complex moral and legal issues that such questions entail? David Richards, a teacher of law in the areas of constitutional and criminal law, and a moral and legal philosopher concerned with the investigation of legal concepts, applies an interdisciplinary approach to the question of overcriminalization, he draws on legal and philosophical arguments and links the subject to history, psychology, social science, and literature. To demonstrate how gross and unjust overcriminalization has developed, Professor Richards explores basic assumptions that often underlie the common American sense of proper criminalization."
Posted in Law

The Idea of Private Law

Author: Ernest J Weinrib

Publisher: Oxford University Press

ISBN: 0199665818

Category: Law

Page: 238

View: 2835

This revised edition of The Idea of Private Law makes one of the major works of modern legal theory accessible to a new generation of lawyers and students. It includes a new introduction by the author, looking back at the work, its origins, and its aspirations.
Posted in Law

The Legalization of Drugs

Author: Doug Husak,Peter de Marneffe

Publisher: Cambridge University Press

ISBN: 1139445855

Category: Philosophy

Page: N.A

View: 8422

In the United States today, the use or possession of many drugs is a criminal offense. Can these criminal laws be justified? What are the best reasons to punish or not to punish drug users? These are the fundamental issues debated in this book by two prominent philosophers of law. Douglas Husak argues in favor of drug decriminalization, by clarifying the meaning of crucial terms, such as legalize, decriminalize, and drugs; and by identifying the standards by which alternative drug policies should be assessed. He critically examines the reasons typically offered in favor of our current approach and explains why decriminalization is preferable. Peter de Marneffe argues against drug legalization, demonstrating why drug prohibition, especially the prohibition of heroin, is necessary to protect young people from self-destructive drug use. If the empirical assumptions of this argument are sound, he reasons, drug prohibition is perfectly compatible with our rights to liberty.
Posted in Philosophy

The Structure and Limits of Criminal Law

Author: PaulH. Robinson

Publisher: Routledge

ISBN: 1351540246

Category: Law

Page: 636

View: 2626

This volume brings together a collection of essays, many of them scholarly classics, which form part of the debates on three questions central to criminal law theory. The first of these questions is: what conduct should be necessary for criminal liability, and what sufficient? The answer to this question has wider implications for the debate about morality enforcement given the concern that the "harm principle" may have collapsed under its own weight. Secondly, essays address the question of what culpability should be necessary for criminal liability, and what sufficient? Here, the battles continue over whether the formulation of doctrines - such as the insanity defense, criminal negligence, strict liability, and others - should ignore or minimize the extent of an offender's blameworthiness in the name of effective crime-control. Or, are methods of accommodating the tension now in sight? Finally, essays consider the question of how criminal law rules should be best organized into a coherent and clarifying doctrinal structure. The structure grown by the common law process competes not only with that of modern comprehensive codifications, such as the America Law Institute's Model Penal Code, but also with alternative structures imagined but not yet tried.
Posted in Law

Go Directly to Jail

The Criminalization of Almost Everything

Author: Gene Healy

Publisher: Cato Institute

ISBN: 9781930865631

Category: Law

Page: 173

View: 2357

The American criminal justice system is becoming ever more centralized and punitive, owing to rampant federalization and mandatory minimum sentencing guidelines. Go Directly to Jail examines these alarming trends and proposes reforms that could rein in a criminal justice apparatus at war with fairness and common sense.
Posted in Law

International Criminal Law and Philosophy

Author: Larry May,Zachary Hoskins

Publisher: Cambridge University Press

ISBN: 0521191513

Category: Law

Page: 258

View: 1865

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. International criminal law is still an emerging field, and as it continues to develop, the elucidation of clear, consistent theoretical groundings for its practices will be crucial. The questions raised and issues addressed by the essays in this volume will aid in this important endeavor.
Posted in Law

Three Felonies a Day

How the Feds Target the Innocent (Large Print 16pt)

Author: Harvey Silverglate

Publisher: ReadHowYouWant.com

ISBN: 1459614607

Category:

Page: 698

View: 3900

The average professional in this country wakes up in the morning, goes to work, comes home, eats dinner, and then goes to sleep, unaware that he or she has likely committed several federal crimes that day. Why? The answer lies in the very nature of modern federal criminal laws, which have exploded in number but also become impossibly broad and vague. In Three Felonies a Day, Harvey A. Silverglate reveals how federal criminal laws have become dangerously disconnected from the English common law tradition and how prosecutors can pin arguable federal crimes on any one of us, for even the most seemingly innocuous behavior. The volume of federal crimes in recent decades has increased well beyond the statute books and into the morass of the Code of Federal Regulations, handing federal prosecutors an additional trove of vague and exceedingly complex and technical prohibitions to stick on their hapless targets. The dangers spelled out in Three Felonies a Day do not apply solely to ''white collar criminals,'' state and local politicians, and professionals. No social class or profession is safe from this troubling form of social control by the executive branch, and nothing less than the integrity of our constitutional democracy hangs in the balance.
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Harm to Others

Author: Joel Feinberg

Publisher: Oxford University Press

ISBN: 0199878579

Category: Philosophy

Page: 288

View: 1880

This first volume in the four-volume series The Moral Limits of the Criminal Law focuses on the "harm principle," the commonsense view that prevention of harm to persons other than the perpetrator is a legitimate purpose of criminal legislation. Feinberg presents a detailed analysis of the concept and definition of harm and applies it to a host of practical and theoretical issues, showing how the harm principle must be interpreted if it is to be a plausible guide to the lawmaker.
Posted in Philosophy

Freedom of Religious Organizations

Author: Jane Calderwood Norton

Publisher: Oxford University Press

ISBN: 0191004057

Category: Law

Page: 300

View: 2684

Religious freedom is now widely accepted as fundamental to any liberal democracy. It is recognised in domestic, regional, and international human rights instruments and its importance is lauded by philosophers, lawyers, judges, clergy, and even politicians. While it is easy to support religious freedom in the abstract, tensions can arise between the activities of religious organizations and the law that challenge this general commitment to religious freedom. Should religious organizations be permitted to discriminate against women or gay people in their employment practices, when admitting members, or in providing goods and services? Should the courts interfere in these organizations to protect the interests of a disaffected member or to resolve internal property disputes? Should the state allow religious tribunals to determine or advise on family matters? While much has been written about religious individuals and the law, there has been a discernible lack of literature on organizations and the law. Jane Norton fills this gap with The Freedom of Religious Organizations. By exploring potential conflicts between the law and religious organizations, and examining whether the current British response to such conflicts is justified, this book will consider when English law ought to apply to religious organizations and how these conflicts should be dealt with.
Posted in Law

In Search of Safety

Confronting Inequality in Women's Imprisonment

Author: Barbara Owen,James Wells,Joycelyn Pollock

Publisher: Univ of California Press

ISBN: 0520288718

Category: Social Science

Page: 280

View: 690

In Search of Safety takes a close look at the sources of gendered violence and conflict in women’s prisons. The authors examine how intersectional inequalities and cumulative disadvantage are at the root of prison conflict and violence and mirror the women’s pathways to prison. Women must negotiate these inequities through developing forms of prison capital—social, human, cultural, emotional, and economic—to ensure their safety while inside. The authors also analyze how conflict and subsequent violence result from human-rights violations inside the prison that occur within the gendered context of substandard prison conditions, inequalities of capital among those imprisoned, and relationships with correctional staff. In Search of Safety proposes a way forward—the implementation of international human-rights standards for U.S. prisons.
Posted in Social Science