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.

Legal Moralism and Public Wrongs

2018 ◽  
Author(s):  
R A Duff
Keyword(s):  
Criminal Law ◽  
Professional Ethics ◽  
Good Reason ◽  
Civic Life ◽  
Legal Moralism ◽  
Preliminary Discussion ◽  
Familiar Form ◽  
Public Wrong

This chapter provides a preliminary discussion of ‘legal moralism’. It distinguishes ‘negative’ from ‘positive’ legal moralism; it defends negative legal moralism (we may not criminalize conduct that is not wrongful prior to its criminalization), and shows why positive legal moralism (the wrongfulness of a type of conduct gives us reason to criminalize it) is attractive. It criticizes the most familiar form of positive legal moralism, according to which we have good reason to criminalize all morally wrongful conduct, as being implausibly over-expansive, and argues for a modest legal moralism according to which criminal law is concerned only with public wrongs. The idea of a public wrong is explained through a discussion of professional ethics, and an analogy between codes of professional ethics, dealing with wrongdoing that falls within a particular practice, and criminal law, as concerned with wrongdoing that falls within the distinctive practice of civic life—of a polity.

scholarly journals Uwagi w sprawie publicznoprawnej determinacji ram przedmiotowych publicznego prawa gospodarczego

Prawo ◽  
2016 ◽  
Vol 320 ◽  
pp. 57-70
Author(s):  
Witold Małecki
Keyword(s):  
Criminal Law ◽  
Public Law ◽  
Polish Literature ◽  
The Public ◽  
Public Economic ◽  
Economic Law ◽  
Definition Of ◽  
Independent Branch

Comments on the public law framework for the scope of public economic lawThe evolution of administrative economic law into public economic law should cause extension of the scope of this section of law, corresponding to its name containing two determinants. However, the scope of public economic law presented in contemporary Polish comprehensive manuals of public economic law does not contain any references to economic criminal law, which is undoubtedly a section of law situated within the confines of public law. In order to determine the meaning of the determinant “public” in the name “public economic law” two models were proposed. In a “shaping” model the determinant “public”, together with the determinant “economic”, defines the scope of public economic law. Only accepting the view on economic law as an independent branch of law and — consequently — the view on public economic law as a divisive factor of the economic law as an independent branch of law allows to justify an omission of economic criminal law provisions which should be included into criminal law. Regarding economic law as an independent branch of law does not entitle one to include such provisions into it if they are classified as a part of another independent branch of law — in this case: criminal law. Another model is a “descriptive” one, in which the determinant “public” does not define the scope of public economic law — the scope is determined by the definition of public economic law. The only role of the determinant “public” is to describe a category of provisions that are included in public economic law. The model, however, does not justify the omission of economic criminal law provisions in the manuals because of a broad shape of the definition of public economic law presented in Polish literature.

Reasons to Criminalize

2018 ◽  
pp. 143-181
Author(s):  
Vincent Chiao
Keyword(s):  
Criminal Law ◽  
Subject Matter ◽  
Public Law ◽  
Point Of View ◽  
Harm Principle ◽  
The Political ◽  
Legal Moralism ◽  
The Public ◽  
Political Ideal ◽  
The Way

This chapter extends the public law conception to the theory of criminalization. The first half of the chapter is devoted to considering whether the criminal law has a privileged subject matter or “core,” focusing especially on Feinberg’s influential account of the criminal law as a system of direct prohibitions. The chapter argues that a subject-matter-based approach has difficulty coming to grips with actual criminal law systems in modern administrative states, in which so-called mala prohibita offenses predominate. The second half of the chapter turns to sketching how we might approach the question of criminalization from a public law point of view, both in general and with reference to the political ideal of anti-deference (sketched in Chapter 3) in particular. Along the way, the chapter argues that the (very popular) wrongfulness principle turns out to be either empty or implausible, and hence that we should reject any version of the harm principle, or of legal moralism, that presupposes it.

scholarly journals Private Interests and Private Law Regulation in Public International Law Jurisdiction

2019 ◽  
pp. 329-354
Author(s):  
Alex Mills
Keyword(s):  
International Law ◽  
Criminal Law ◽  
Public Law ◽  
Private Law ◽  
Public International Law ◽  
The Public ◽  
Private Interests ◽  
Law Regulation ◽  
The Way

This chapter focuses on private interests and private law regulation in public international law jurisdiction, and discusses how questions of private law are generally marginalized in favour of a focus on public law, particularly criminal law. This is surprising and unfortunate for two main reasons. The first is that private law issues played a central role in the development of public international law jurisdictional principles. The second is that public international lawyers have, in a range of other contexts, increasingly recognized the significance of private law regulation, and the ‘public’ function which it can play in pursuing particular state interests. Recognizing the significance of private law jurisdiction presents, however, some important challenges to the way in which public international law jurisdiction has become to be understood.

scholarly journals Penalising Presence in Public Space: Control through Exclusion of the ‘Difficult’ and ‘Undesirable

2017 ◽  
Vol 6 (2) ◽  
pp. 1-16 ◽  
Author(s):  
Craig Johnstone
Keyword(s):  
Public Space ◽  
Criminal Law ◽  
Public Spaces ◽  
Critical Assessment ◽  
Public Realm ◽  
Exclusionary Practices ◽  
The Public ◽  
Recent Reform ◽  
Mere Presence ◽  
Preferred Solutions

Over the last two decades and across a number of jurisdictions, new measures enshrined in criminal law and administrative codes have empowered authorities to exclude unwelcome groups and individuals from public spaces. Focusing particular attention on recent reform in Britain, this paper traces the evolution of contemporary exclusionary practices, from their initial concern with proscribed behaviour to the penalisation of mere presence. The latter part of the paper offers a critical assessment of what has driven these innovations in control of the public realm. Here consideration is given to two possibilities. First, such policy is the outcome of punitive and revanchist logics. Second, their intentions are essentially benign, reflecting concerns about risk, liveability and failures of traditional order-maintenance mechanisms. While acknowledging concerns about the over-eagerness of scholars to brand new policy as punitive, the paper concludes that any benign intentions are overshadowed by the regressive and marginalising consequences of preferred solutions.

Criminal Law in the Age of the Administrative State

2018 ◽  
Author(s):  
Vincent Chiao
Keyword(s):  
Criminal Law ◽  
Mass Incarceration ◽  
Public Law ◽  
Public Institutions ◽  
Public Institution ◽  
Administrative State ◽  
The Public ◽  
Political Morality ◽  
Wide Range ◽  
Procedural Rights

What is the criminal law for? At its most elemental, criminal law secures the possibility of a shared life under stable and just public institutions. In the age of the administrative state, criminal law performs this task by stabilizing cooperation across a wide range of contexts, from backstopping compliance with tax law to protecting the integrity of a nation’s fisheries. How should we decide when this is a legitimate use of the criminal law? The “public law” conception sketched in this book suggests that because the criminal law is a public institution, it should be evaluated by the very same values that we structure our evaluation of public institutions generally. In contrast to familiar forms of retributivism, the public law conception starts from the political morality of public institutions, rather than the interpersonal morality of private relationships. In a society with democratic and egalitarian aspirations, the legitimacy of the criminal law depends in part upon the democratic and egalitarian character of the institutions it supports, and in part upon its supporting those institutions by means that are themselves consistent with democratic and egalitarian principles. The particular account of those principles sketched in this book is democratic, egalitarian without being equalizing, and focused on a form of freedom—effective access to central capability—as its currency of evaluation. This approach provides a distinctive and illuminating framework for assessing a wide range of problems in criminal law and policy, from mass incarceration, to over-criminalization and the allocation of procedural rights.

scholarly journals HUKUM ADMINISTRASI NEGARA SEBAGAI HIMPUNAN PERATURAN-PERATURAN ISTIMEWA

to-ra ◽  
2019 ◽  
Vol 5 (1) ◽  
pp. 37
Author(s):  
Chandra Aritonang
Keyword(s):  
Criminal Law ◽  
Public Interest ◽  
Administrative Law ◽  
Public Law ◽  
The State ◽  
The Public ◽  
State Administration ◽  
The Law

Abstract State Administration in every action must be based on law to solve and resolve the problem mentioned above or there is no law. The State Administration can be forced to use its authority to revoke regulations. Administration as a law maker in its application when related to legal systematics has caused controversial matters in essence State Administration is part of public law, so that all actions in the application based on its function are solely intended for and in the public interest, this is no different from the law State Administration, Criminal Law and Others. A situation can lead to deviations from the State administration of the systematics of law. Therefore the State Administrative Law as a set of special regulations.   Keywords: state administration; public law; special regulations.  

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.

The Public Realm: Weaving a Regional Civic Life

2008 ◽  
Vol 27 (2) ◽  
pp. 205-218 ◽  
Author(s):  
L. H. Schneekloth ◽  
R. G. Shibley
Keyword(s):  
Civic Life ◽  
Public Realm ◽  
The Public

Criminalization and Civil Order

2018 ◽  
Author(s):  
R A Duff
Keyword(s):  
Good Reason ◽  
Legal Regulation ◽  
The Public ◽  
Different Types ◽  
The Law ◽  
Civil Order ◽  
Public Wrong

This chapter explains the ‘public wrongs’ criminalization principle. However, criminalization is one among various possible responses to public wrongs: so we must ask whether we have good reason to criminalize a public wrong rather than responding in another way. To illustrate the working of a ‘public wrongs’ principle, examples of three kinds of offence are discussed. First, ‘mala in se’, consisting in conduct supposedly wrongful prior to its legal regulation: the criminalization process here involves constructing a civic conception of the wrong. Second, different types of ‘malum prohibitum’ (consisting in conduct that might be wrongful only because legally prohibited) are discussed, to show how violations of pre-criminal regulations can constitute criminalizable wrongs. Third, ‘pre-emptive’ offences are discussed: they criminalize conduct only remotely connected to the mischief at which the law is aimed; it is important to see how far such offences can be justified—and subjected to principled constraint.

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