The Realm of Criminal Law

2018 ◽  
Author(s):  
R. A Duff
Keyword(s):  
Criminal Law ◽  
Democratic Republic ◽  
Normative Theory ◽  
Political Community ◽  
The Other ◽  
Public Realm ◽  
Legal Practice ◽  
Deliberative Process ◽  
Public Account ◽  
Civil Order

We are said to face a crisis of over-criminalization: our criminal law has become chaotic, unprincipled, and over-expansive. This book proposes a normative theory of criminal law, and of criminalization, that shows how criminal law could be ordered, principled, and restrained​. The theory is based on an account of criminal law as a distinctive legal practice that functions to define a set of public wrongs, and to call to formal public account those who commit such wrongs; an account of the role that such a practice can play in a democratic republic of free and equal citizens; and an account of the central features of such a political community, and of the way in which it constitutes its civil order. Criminal law plays an important, but limited, role in such a political community in protecting, but also partly constituting, its civil order. On the basis of this account, we can see how such a political community will decide what kinds of conduct should be criminalized—not by applying one or more of the substantive master principles that theorists have offered, but by considering which kinds of conduct fall within its public realm (as distinct from the private realms that are not the polity’s business), and which kinds of wrong within that realm require this distinctive kind of response (rather than one of the other kinds of available response). The outcome of such a deliberative process will probably be a more limited, and a more rational and principled, criminal law.

A Liberal Republic and its Criminal Law

2018 ◽  
Author(s):  
R A Duff
Keyword(s):  
Criminal Law ◽  
Political Thought ◽  
Criminal Punishment ◽  
Public Account ◽  
Civil Order

This chapter puts some flesh on Chapter 4’s formal account of civil order, by sketching the civil order of a liberal republic, drawing on the republican tradition of political thought. We can then see the role that criminal law can play in such a polity: as an appropriate way of marking and responding to public wrongs, it helps to sustain, and constitute, the civil order. Its central role is to provide formal declarations of the central norms of that civil order, defining what kinds of conduct citizens are entitled to expect from each other (and from the polity); and to provide the process through which those accused of violating these norms are called to public account. On this account, criminal punishment is not the primary purpose of criminal law: but given the salience of punishment in our criminal law, something must be said about its role in a liberal republic.

Civil Order and the Public Realm

2018 ◽  
Author(s):  
R A Duff
Keyword(s):  
Criminal Law ◽  
Public Law ◽  
Civic Life ◽  
Shared Understanding ◽  
Public Realm ◽  
The Public ◽  
Civil Order ◽  
Public Wrong

This chapter offers an account of the practice of civic life: of the ‘public realm’, within which criminal law operates as public law. ‘Civil order’, the normative ordering of the polity’s life, is central to this public realm: it is structured by the values through which a polity constitutes itself; it can be partly defined by a written constitution, but is also implicit in the polity’s institutions and practices. A conception of civil order depends on a normative distinction between the ‘public’ and the ‘private’: we must attend to different public–private distinctions. We must also attend to the preconditions of civil order: what kinds of shared understanding are necessary; what can be said to dissenters? Given a conception of a polity’s civil order, and its public realm, we can understand a ‘public wrong’ as a wrong that falls within that public realm, and violates that civil order.

Criminal law as a moral stronghold

2019 ◽  
pp. 59-74
Author(s):  
Hans Boutellier
Keyword(s):  
Criminal Law ◽  
The Other ◽  
Moral Order ◽  
Complex World ◽  
Legal Practice ◽  
Moral Issues ◽  
Moral Space ◽  
Security Discourse ◽  
The Relationship

This chapter analyses the position of criminal law in order to understand the dominance of the security discourse. In a morally coherent community, criminal law functions as a last resort — an ultimum remedium. This was the case until the 1970s. Due to rising crime figures and societal unease, the position of criminal law shifted from a legal practice on the periphery to a central institution of moral order. The chapter discusses a switch in the relationship between morality and criminal law. After the 1970s, criminal law was no longer the result of consensus on moral issues, but it was the other way round: criminal law became the defining authority in the design of moral space. It is the moral stronghold in a liquid society, an anchor in a complex world without direction. The chapter shows how ‘the victim’ was the key in this ‘inversion’ of morality and criminal law.

Toward a Normative Theory of Equal Culpability Imputation

2019 ◽  
pp. 139-172
Author(s):  
Alexander Sarch
Keyword(s):  
General Theory ◽  
Criminal Law ◽  
Mental States ◽  
Legal Framework ◽  
Normative Theory ◽  
The Other ◽  
Mens Rea ◽  
Willful Ignorance ◽  
Normative Problem

This chapter aims to defend a general theory of equal-culpability-based imputation of mental states in the criminal law. The willful ignorance doctrine is one example of an equal culpability mens rea imputation principle. After all, what grounds imputing knowledge to a willfully ignorant actor is that her conduct is as culpable as the analogous knowing conduct. Chapters 3 and 4 examined the scope of this imputation principle. But deeper worries linger. Even if equal culpability is necessary for this mode of imputing knowledge to the willfully ignorant, does it provide sufficient justification for such imputation? This chapter confronts two of the deeper objections that remain. One is pressing for practitioners within an existing legal framework (courts and litigants). But it admits of straightforward answers. The other is a harder normative problem for those who make law. Why should lawmakers take equal culpability to be a legitimate basis for imputing missing mental states? Answering this challenge requires a general theory of equal culpability imputation, which it is the aim of this chapter to provide. This theory will then serve as the basis for the remaining chapters in the book.

Criminal law and the constitution of civil order

2020 ◽  
Vol 70 (supplement 1) ◽  
pp. 4-26
Author(s):  
RA Duff
Keyword(s):  
Criminal Law ◽  
Civil Order

MAIN SPECIFICATIONS OF ASSESSING ACTIVITIES OF MINOR IMPORTANCE OF IN MODERN CRIMINAL LAW

Law and World ◽  
2020 ◽  
Vol 14 (1) ◽  
pp. 83-95
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Case Law ◽  
Criminal Code ◽  
The Other ◽  
European Countries ◽  
Minor Importance ◽  
Detailed Review

The research includes the full and the detailed overview of assessing activities of minor importance in Georgian Criminal Law. The Article 7 of the Criminal Code of Georgia states the following: a crime shall not be an action that, although formally containing the signs of a crime, has not produced, for minor importance, the prejudice that would require criminal liability of its perpetrator, or has not created the risk of such harm. The research includes the main criteria of defining activities as activities of minor importance. The detailed review of Georgian case law is also introduced, as well as, legislation, judicial literature and experience of the other European countries.

Conclusion

2018 ◽  
Author(s):  
Brooke A. Ackerly
Keyword(s):  
Human Rights ◽  
Political Process ◽  
Normative Theory ◽  
Power Relation ◽  
Political Community ◽  
Political Transformation ◽  
Political Responsibility ◽  
Women's Human Rights ◽  
Taking Responsibility

Just responsibility is a transformative human rights politics for taking on the complexities, power inequalities, and social normalization of injustice itself. Just responsibility is a human rights theory of political responsibility in which we understand human rights as enjoyed and shared throughout political community (and human rights entitlements as a tool toward that end), political community as defined by its web of networks, not its boundaries, accountability as a political process of discernment, not a power relation, and leadership as a quality of political community, not of individuals within it. Found within and supported by the principles-in-practice of women’s human rights activists, this grounded normative theory of responsibility guides us in a human rights enhancing way to be accountable leaders in political transformation, taking responsibility for global injustice in a just way.

Penal Law and Penal Police in the Dual Penal State

2018 ◽  
Author(s):  
Markus D. Dubber
Keyword(s):  
Criminal Law ◽  
Critical Analysis ◽  
The Other ◽  
Liberal Democratic ◽  
Democratic State ◽  
Alternative Approach ◽  
Penal State ◽  
Penal Law ◽  
Patriarchal Power ◽  
Modes Of Governance

The first part of Dual Penal State investigated various ways in which criminal law doctrine and scholarship (or “science”) have failed to address the challenge of legitimating penal power in a modern liberal democratic state. This, second, part explores an alternative approach to criminal law discourse that puts the legitimacy challenge of modern penal law front and center: critical analysis of criminal law in a dual penal state. Dual penal state analysis differentiates between penal law and penal police, two conceptions of penal power, and state power more generally, rooted in autonomy, equality, and interpersonal respect, on one hand, and in heteronomy, hierarchy, and patriarchal power, on the other. Chapter 4 applies the distinction between law and police as fundamental modes of governance set out in Chapter 3 to the penal realm and explores the tension between penal law and penal police as constituting the dual penal state.

"The Presence of the Other is a Presence that Teaches": Levinas, Pragmatism, and Pedagogy

2006 ◽  
Vol 14 (1-2) ◽  
pp. 91-108 ◽  
Author(s):  
Claire Elise Katz
Keyword(s):  
Educational Philosophy ◽  
Jewish Education ◽  
Positive Response ◽  
Political Community ◽  
The Other ◽  
Ethical Framework ◽  
The Political ◽  
Moral Cultivation ◽  
Ethical Response ◽  
Ethical Project

AbstractAlthough Levinas talks about ethics as a response to the other, most scholars assume that this "response" is not something tangible—it is not an actual giving of food or providing of shelter and clothing. But there is evidence in Levinas's own writings that indicate he does intend for a positive response to the Other. In any event, while he acknowledges that the other is the sole person I wish to kill, killing the other, within an ethical framework would be a violation of that response. The failure to respond to the other ethically requires us to ask if Levinas's project needs an educational philosophy or a model of moral cultivation to supplement it. This essay explores this question by putting into conversation Levinas's ethical project and his interest in Jewish education with John Dewey's philosophy of education and its relationship to the political community. This exploration will help us see what this field of research might offer in promoting the cultivation of ethical response as Levinas envisions it and what its limits are.

scholarly journals Territoriality Beyond the State: The EU’s Territorial Claims and the Search for Their Legitimacy

2021 ◽  
Vol 22 (4) ◽  
pp. 650-672
Author(s):  
Josef Weinzierl
Keyword(s):  
The State ◽  
Political Community ◽  
The Other ◽  
Main Question ◽  
Eu Law ◽  
European Level ◽  
Territorial Claims ◽  
The One ◽  
The Individual ◽  
The Eu

AbstractQuite a few recent ECJ judgments touch on various elements of territorial rule. Thereby, they raise the profile of the main question this Article asks: Which territorial claims does the EU make? To provide an answer, the present Article discusses and categorizes the individual elements of territoriality in the EU’s architecture. The influence of EU law on national territorial rule on the one hand and the emergence of territorial governance elements at the European level on the other provide the main pillars of the inquiry. Once combined, these features not only help to improve our understanding of the EU’s distinctly supranational conception of territoriality. What is more, the discussion raises several important legitimacy questions. As a consequence, the Article calls for the development of a theoretical model to evaluate and justify territoriality in a political community beyond the state.

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