Overcriminalization

The Limits of the Criminal Law

Author: Douglas Husak

Publisher: Oxford University Press

ISBN: 9780198043997

Category: Law

Page: 248

View: 8765

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

Philosophical Foundations of Criminal Law

Author: R. A. Duff,Stuart Green

Publisher: OUP Oxford

ISBN: 0191654701

Category: Law

Page: 560

View: 8708

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: 8790

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

The Right Not to be Criminalized

Demarcating Criminal Law's Authority

Author: Dr Dennis J Baker

Publisher: Ashgate Publishing, Ltd.

ISBN: 1409497593

Category: Law

Page: 312

View: 5592

This book presents arguments and proposals for constraining criminalization, with a focus on the legal limits of the criminal law. The book approaches the issue by showing how the moral criteria for constraining unjust criminalization can and has been incorporated into constitutional human rights and thus provides a legal right not to be unfairly criminalized. The book sets out the constitutional limits of the substantive criminal law. As far as specific constitutional rights operate to protect specific freedoms, for example, free speech, freedom of religion, privacy, etc, the right not to be criminalized has proved to be a rather powerful justice constraint in the U.S. Yet the general right not to be criminalized has not been fully embraced in either the U.S. or Europe, although it does exist. This volume lays out the legal foundations of that right and the criteria for determining when the state might override it. The book will be of interest to researchers in the areas of legal philosophy, criminal law, constitutional law, and criminology.
Posted in Law

Juristen

ein biographisches Lexikon : von der Antike bis zum 20. Jahrhundert

Author: Michael Stolleis

Publisher: C.H.Beck

ISBN: 9783406459573

Category: Lawyers

Page: 719

View: 4572

Posted in Lawyers

The Limits of Criminal Law

A Comparative Analysis of Approaches to Legal Theorizing

Author: Mr Carl Constantin Lauterwein

Publisher: Ashgate Publishing, Ltd.

ISBN: 1409497011

Category: Law

Page: 158

View: 4507

This book compares the civil and common law approach to analyze the question – 'What sorts of conduct may the state legitimately make criminal?'. Through a comparative focus on an Australian and German context, this book utilizes interviews with Australian criminal law experts and contrasts them with the German model based on 'Rechtsgutstheorie'. By comparing the largely descriptive, criminology-based Australian approach with the more sophisticated German legal theory model the author finds the Australian approach to be suffering from a 'normative flaw', illustrated by the distinction of different approaches to the offences of incest, bestiality and possession of illicit drugs. Carl Constantin Lauterwein discovers that while there is strength in the common law approach of describing the possible reasons for criminalizing certain conduct, the approach could be significantly improved by scrutinizing the legitimacy of those reasons.
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: 1859

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

The Constitution of the Criminal Law

Author: R. A. Duff,Lindsay Farmer,S. E. Marshall,Massimo Renzo,Victor Tadros

Publisher: OUP Oxford

ISBN: 0191655287

Category: Law

Page: 250

View: 6715

The third book in the Criminalization series examines the constitutionalization of criminal law. It considers how the criminal law is constituted through the political processes of the state; how the agents of the criminal law can be answerable to it themselves; and finally, how the criminal law can be constituted as part of the international order. Addressing the ways in which and the grounds on which types of conduct can be justifiably criminalized, the first four chapters of this volume focus on the questions that arise from a consideration of the political constitution of the criminal law. The contributors then turn their attention to the role of the state, its institutions and officials, and their role not only as creators, enactors, interpreters, and enforcers of the criminal law, but also as subjects of it. How can the agents of the criminal law also be answerable to it? Finally discussion turns to how the criminal law can be constituted as part of an international order. Examining the relationships between domestic laws of different nation-states, and between domestic criminal law and international or transnational law, the chapters also look at the authority and jurisdiction of international criminal law itself, and its relationship to other dimensions of the international order. A vital examination of one of the most important topics in modern criminal legal theory, this volume raises new questions central to the study of the criminal law and offers new suggestions for addressing them.
Posted in Law

The Drug Wars in America, 1940–1973

Author: Kathleen J. Frydl

Publisher: Cambridge University Press

ISBN: 1107067278

Category: History

Page: N.A

View: 3652

The Drug Wars in America, 1940–1973 argues that the US government has clung to its militant drug war, despite its obvious failures, because effective control of illicit traffic and consumption were never the critical factors motivating its adoption in the first place. Instead, Kathleen J. Frydl shows that the shift from regulating illicit drugs through taxes and tariffs to criminalizing the drug trade developed from, and was marked by, other dilemmas of governance in an age of vastly expanding state power. Most believe the 'drug war' was inaugurated by President Richard Nixon's declaration of a war on drugs in 1971, but in fact his announcement heralded changes that had taken place in the two decades prior. Frydl examines this critical interval of time between regulation and prohibition, demonstrating that the war on drugs advanced certain state agendas, such as policing inner cities or exercising power abroad.
Posted in History

Foundational Texts in Modern Criminal Law

Author: Markus D Dubber

Publisher: OUP Oxford

ISBN: 0191654620

Category: Law

Page: 450

View: 9052

Foundational Texts in Modern Criminal Law presents essays in which scholars from various countries and legal systems engage critically with formative texts in criminal legal thought since Hobbes. It examines the emergence of a transnational canon of criminal law by documenting its intellectual and disciplinary history and provides a snapshot of contemporary work on criminal law within that historical and comparative context. Criminal law discourse has become, and will continue to become, more international and comparative, and in this sense global: the long-standing parochialism of criminal law scholarship and doctrine is giving way to a broad exploration of the foundations of modern criminal law. The present book advances this promising scholarly and doctrinal project by making available key texts, including several not previously available in English translation, from the common law and civil law traditions, accompanied by contributions from leading representatives of both systems.
Posted in Law

Preventive Justice

Author: Andrew Ashworth,Lucia Zedner

Publisher: OUP Oxford

ISBN: 0191021059

Category: Law

Page: 310

View: 3602

This book arises from a three-year study of Preventive Justice directed by Professor Andrew Ashworth and Professor Lucia Zedner at the University of Oxford. The study seeks to develop an account of the principles and values that should guide and limit the state's use of preventive techniques that involve coercion against the individual. States today are increasingly using criminal law or criminal law-like tools to try to prevent or reduce the risk of anticipated future harm. Such measures include criminalizing conduct at an early stage in order to allow authorities to intervene; incapacitating suspected future wrongdoers; and imposing extended sentences or indefinate on past wrongdoers on the basis of their predicted future conduct - all in the name of public protection and security. The chief justification for the state's use of coercion is protecting the public from harm. Although the rationales and justifications of state punishment have been explored extensively, the scope, limits and principles of preventive justice have attracted little doctrinal or conceptual analysis. This book re-assesses the foundations for the range of coercive measures that states now take in the name of prevention and public protection, focussing particularly on coercive measures involving deprivation of liberty. It examines whether these measures are justified, whether they distort the proper boundaries between criminal and civil law, or whether they signal a larger change in the architecture of security. In so doing, it sets out to establish a framework for what we call 'Preventive Justice'.
Posted in Law

Criminalization

The Political Morality of the Criminal Law

Author: R A Duff,Lindsay Farmer,S E Marshall,Massimo Renzo,Victor Tadros

Publisher: OUP Oxford

ISBN: 0191043362

Category: Law

Page: 340

View: 9511

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 of offences? The fourth book in the series examines the political morality of the criminal law, exploring general principles and theories of criminalization. Chapters provide accounts of the criminal law in the light of ambitious theories about moral and political philosophy - republicanism and contractarianism, or reflect upon on the success of important theories of criminalization by viewing them in a novel light. Ideas that are fundamental to any complete theory of the criminal law - liberty, harm, and the effect on victims - are investigated in depth. Sociological investigation of the criminal law grounds a critical investigation into the principles of criminalization, both as a legislative matter, and with respect to criminalization practices, in contemporary and historical contexts. The volume broadens our conceptions of the theory of criminalization, and clarifies the role of the series in the development of this theory. It is essential reading for all interested in legal, political, and social theories of criminalization.
Posted in Law

Strafrecht als "ultima ratio" und Bestrafung von Unternehmen

Author: Young-Cheol Yoon

Publisher: Peter Lang Gmbh, Internationaler Verlag Der Wissenschaften

ISBN: 9783631384565

Category:

Page: 225

View: 9012

Unter dem Umstand der Modernisierung des Strafrechts in den Feldern der Umwelt und Wirtschaft wird das<I> ultima ratio-Prinzip nicht als dessen Begrenzungs-, sondern vielmehr als dessen Erweiterungsprinzip ausgenutzt. Der allzuschnelle Ruckgriff des Umwelt- und Wirtschaftsbereiches auf das Strafrecht fuhrt zunachst zur Uberlastung der Kriminaljustiz selbst und verhindert den Einsatz einer angemessenen Strukturpolitik sowie der entsprechenden Regelungssystemen. Dies kann gerade dem<I> ultima ratio-Prinzip nicht entsprechen, in dem das Bestimmtheitsgebot, das Schuld-, das Subsidiaritatsprinzip usw. als Rechtsstaatsprinzipien enthalten sind. Die strafrechtliche Steuerung unternehmerischer Tatigkeit durfte infolge der Arbeitsteilung und Informationskanalisierung innerhalb des Unternehmens nur eine rein symbolische Funktion haben, die die Geltungsgrundlagen des liberalrechtsstaatlichen Strafrechts zerstort und das Strafrechtssystem selbst an der Uberfrachtung mit nicht steuerbaren Zielsetzungen zugrunde gehen lasst. Unter dem Gesichtspunkt des<I> ultima ratio-Prinzips waren die Strafrechtsbeschrankung und die Betonung der eigenstandigen Aufgabe des Strafrechts in einer freien Gesellschaft in der Lage, theoretisch uberzeugende und effektive Regelungen vorzuschlagen."
Posted in

Crime and Punishment

A Concise Moral Critique

Author: Hyman Gross

Publisher: OUP Oxford

ISBN: 0191630195

Category: Law

Page: 240

View: 3649

It is generally assumed that we are justified in punishing criminals because they have committed a morally wrongful act. Determining when criminal liability should be imposed calls for a moral assessment of the conduct in question, with criminal liability tracking as closely as possible the contours of morality. Versions of this view are frequently argued for in philosophical accounts of crime and punishment, and seem to be presumed by lawyers and policy makers working in the criminal justice system. Challenging such assumptions, this book considers the dominant justifications of punishment and subjects them to a piercing moral critique. It argues that none overcome the objection that people who are convicted of a serious crime and sent to prison have their basic human rights violated. The institution of criminal punishment is shown to be a regrettable necessity not deserving of the moral enthusiasm it enjoys among many politicians and the popular press. From a moral point of view, punishment is entitled at best to grudging toleration. In the course of developing the argument, the book introduces the principal issues of criminal law theory with the aim of presenting a morally enlightened perspective on crimes and why we punish them. Enforcement of the law by police, prosecutors, and courts is a matter of concern for political morality, and the principal practices of the criminal justice system are subjected to moral scrutiny. The book offers an engaging, provocative introduction to thinking about the philosophy of crime and punishment, challenging students and other readers to think about whether we are justified in punishing wrongdoers.
Posted in Law

Gerechte Freiheit

Ein moralischer Kompass für eine komplexe Welt

Author: Philip Pettit

Publisher: Suhrkamp Verlag

ISBN: 3518740989

Category: Philosophy

Page: 350

View: 8962

Was heißt Freiheit heute – jenseits einer auf persönliche Interessendurchsetzung zielenden neoliberalen Marktfreiheit? Können wir noch ein Freiheitsverständnis entwickeln, das uns moralische Orientierung in einer immer komplexer werdenden Welt bietet? Philip Pettit, einer der meistdiskutierten Philosophen der Gegenwart, entwickelt in seinem mitreißenden Buch einen Freiheitsbegriff, der die Idee eines nichtbeherrschten Lebens in sein Zentrum stellt. Freiheit heißt ihm zufolge: sein eigener Herr sein, allen auf Augenhöhe begegnen können und den Einfluss anderer Menschen nicht fürchten müssen. Das hat weitreichende soziale, ökonomische und politische Konsequenzen. Ein unverzichtbarer Kompass für die Navigation im 21. Jahrhundert.
Posted in Philosophy

Soul, Self, and Society

The New Morality and the Modern State

Author: Edward L. Rubin

Publisher: Oxford University Press

ISBN: 0199348677

Category: Political Science

Page: 336

View: 466

Political and social commentators regularly bemoan the decline of morality in the modern world. They claim that the norms and values that held society together in the past are rapidly eroding, to be replaced by permissiveness and empty hedonism. But as Edward Rubin demonstrates in this powerful account of moral transformations, these prophets of doom are missing the point. Morality is not diminishing; instead, a new morality, centered on an ethos of human self-fulfillment, is arising to replace the old one. As Rubin explains, changes in morality have gone hand in hand with changes in the prevailing mode of governance throughout the course of Western history. During the Early Middle Ages, a moral system based on honor gradually developed. In a dangerous world where state power was declining, people relied on bonds of personal loyalty that were secured by generosity to their followers and violence against their enemies. That moral order, exemplified in the early feudal system and in sagas like The Song of Roland, The Song of the Cid, and the Arthurian legends has faded, but its remnants exist today in criminal organizations like the Mafia and in the rap music of the urban ghettos. When state power began to revive in the High Middle Ages through the efforts of the European monarchies, and Christianity became more institutionally effective and more spiritually intense, a new morality emerged. Described by Rubin as the morality of higher purposes, it demanded that people devote their personal efforts to achieving salvation and their social efforts to serving the emerging nation-states. It insisted on social hierarchy, confined women to subordinate roles, restricted sex to procreation, centered child-rearing on moral inculcation, and countenanced slavery and the marriage of pre-teenage girls to older men. Our modern era, which began in the late 18th century, has seen the gradual erosion of this morality of higher purposes and the rise of a new morality of self-fulfillment, one that encourages individuals to pursue the most meaningful and rewarding life-path. Far from being permissive or a moral abdication, it demands that people respect each other's choices, that sex be mutually enjoyable, that public positions be allocated according to merit, and that society provide all its members with their minimum needs so that they have the opportunity to fulfill themselves. Where people once served the state, the state now functions to serve the people. The clash between this ascending morality and the declining morality of higher purposes is the primary driver of contemporary political and cultural conflict. A sweeping, big-idea book in the vein of Francis Fukuyama's The End of History, Charles Taylor's The Secular Age, and Richard Sennett's The Fall of Public Man, Edward Rubin's new volume promises to reshape our understanding of morality, its relationship to government, and its role in shaping the emerging world of High Modernity.
Posted in Political Science

Corporate Manslaughter and Regulatory Reform

Author: P. Almond

Publisher: Springer

ISBN: 1137296275

Category: Social Science

Page: 224

View: 6828

This book provides an account of the international emergence of corporate manslaughter offences to criminalise deaths in the workplace during the last twenty years, identifying the limitations of health and safety regulation that have prompted this development.
Posted in Social Science

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: 6549

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 Prison and the Gallows

The Politics of Mass Incarceration in America

Author: Marie Gottschalk

Publisher: Cambridge University Press

ISBN: 1139455214

Category: Political Science

Page: N.A

View: 4268

The United States has built a carceral state that is unprecedented among Western countries and in US history. Nearly one in 50 people, excluding children and the elderly, is incarcerated today, a rate unsurpassed anywhere else in the world. What are some of the main political forces that explain this unprecedented reliance on mass imprisonment? Throughout American history, crime and punishment have been central features of American political development. This 2006 book examines the development of four key movements that mediated the construction of the carceral state in important ways: the victims' movement, the women's movement, the prisoners' rights movement, and opponents of the death penalty. This book argues that punitive penal policies were forged by particular social movements and interest groups within the constraints of larger institutional structures and historical developments that distinguish the United States from other Western countries.
Posted in Political Science

Schachmatt

Author: Stephen L. Carter

Publisher: Rowohlt Verlag GmbH

ISBN: 3644429316

Category: Fiction

Page: 864

View: 2668

Wenn der schwarze König fällt ... Als der geachtete Richter Oliver Garland überraschend stirbt, ist sein Sohn Talcott überzeugt, dass ein schwaches Herz die Ursache war. Doch warum wird Talcott ständig nach den «Vorkehrungen» gefragt, die sein Vater für den Todesfall getroffen habe? Warum wird er verfolgt? Und warum fehlen zwei Schachfiguren auf dem sonst so sorgsam gehüteten Schachbrett des Richters? Bald darauf wird ein zweiter Toter aus dem Umfeld Oliver Garlands aufgefunden. Und Talcott sieht sich hineingezogen in die dunkle Vergangenheit seines Vaters. Er muss alles aufs Spiel setzen: seine Ehre, seinen Ruf – und sein Leben. «Seit Tom Wolfe habe ich keinen so vielschichtigen, mitreißenden und bereichernden Roman gelesen wie ‹Schachmatt›.» (USA Today) «Ein prall erzähltes, anekdoten- und facettenreiches Werk.» (Der Spiegel) «Dieses Buch kann man einfach nicht aus der Hand legen.» (New York Times Book Review) «Wunderbar erzählt und clever konstruiert. ‹Schachmatt› ist eine lebendige und vielschichtige Familiensaga, die geschickt verbunden ist mit der Spannung eines Thrillers ... Ein wirklicher Genuss!» (John Grisham) «Man kann dieses Buch einfach nicht aus der Hand legen ... Ein ebenso außergewöhnlicher wie überzeugender Roman.» (New York Times) «Ein unterhaltsamer, eleganter und ideenreicher Roman mit einem wunderbaren Kosmos von Figuren.» (The New York Review of Books) «Scharfsichtige Beobachtungen, gepaart mit einem ernsthaften sozialen Gewissen, das den meisten Büchern dieser Art fehlt ... Ein sprachliches Meisterwerk.» (Time)
Posted in Fiction