In lieu of an abstract, here is a brief excerpt of the content:Criminal Law, Pain Relief, and Physician Aid in DyingFaye Girsh, Ed.D., Executive DirectorMadam:The article by Cantor and Thomas on “Pain Relief, Acceleration of Death, and Criminal Law” (KIEJ, June 1996) was a tortured attempt to develop criteria for the humane and compassionate physician who tries to serve the needs of a patient in unremitting pain. There are three areas that merit comment.The authors dealt with pain medications (...) that might have the undesirable side effect of causing death. They did not mention tolerance, which usually occurs in a patient with chronic pain and which would require exceedingly high doses to be effective. They did not mention barbiturates, which are preferable to opiates in causing death and which are used increasingly by compassionate physicians to answer the pleas of their suffering patients, but for which there is no excuse about alleviating pain. Would the criminal law just call the prescription of a lethal dose of barbiturates a reckless act and require conviction? Fortunately, juries, as the authors point out, do not balance these formulas on the head of a pin. When they see the circumstances under which these doctors do help their patients, they choose to nullify the law and would ignore the suggestions made in this article.The authors refer to the “consent” of the patient. They do not mention that these doctors are operating with more than consent; they are administering these medications because suffering patients are begging them to put them out of their pain and the indignities of the dying process. The article discusses the process as though it were the same as consent to elective surgery. These patients—with AIDS, cancer, and hopeless neurological degeneration—are not simply agreeing to a procedure; they are desperately seeking a way out. If the criminal law were to develop criteria for physician aid in dying, certainly one of them should be the active, witnessed, repeated request of such a patient for a certain, quick, painless, gentle death.The third point is that physicians do not face prosecution when administering no treatment to a patient whose life could be saved with treatment but who chooses not to receive it. This has been upheld by the U.S. Supreme Court; no criteria for suffering, alternatives, terminality, justifiability, or unbearability are required. The doctor can stand by while the patient dies what may be a protracted, difficult death, but it is within the law. What matters in this situation is the decision of the patient to refuse treatment, and that is absolute. How ironic that the patient who cannot refuse treatment must, with his or her doctor, jump through all these hoops to achieve a peaceful death.One worries that the physician who must balance the risk of “risky pain relief” against the accusation of recklessness will err in the direction of allowing [End Page 103] the patient to bear the pain rather than help with a dose of analgesics that might be considered beyond the stipulated “risk.”Why don’t we just be honest about it? Allow dying or hopelessly ill patients to make the decision about what they want by passing a carefully defined law allowing euthanasia rather than balancing the risk and trying to determine the “purpose” of the physician’s ministrations. We protect some patients from themselves while allowing others almost complete autonomy to make the choice of ending their lives. The authors were right in saying that proponents of rational laws consider this sheer hypocrisy.Faye Girsh, Executive DirectorHemlock Society U.S.A. Denver, COFaye Girsh misconceives our article’s objective as an “attempt to develop criteria” for the humane physician. Our goal in writing the paper was to analyze the current criminal law framework in the hope of sharpening debate and engendering normative critiques. We readily acknowledge tensions in the current legal framework and would support changes in that framework.Copyright © 1997 The Johns Hopkins University Press... (shrink)

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. (shrink)

I discuss some of the roles that lay people play in relation to the criminal law, and how that law should figure in their practical reasoning: this will also cast light on the place of criminal law in a democratic republic. The two roles discussed in this paper are those of citizen, and juror. Citizens should be able to respect the law as their law – as a common law; but this must be a critical respect, captured in (...) the idea of ‘law abidance’ as a civic virtue. Jurors are tasked with making normative judgments of guilt or innocence, as part of a process through which those accused of criminal wrongdoing are called to answer to their fellow citizens: they must therefore be able to understand the law, and make it their own – which raises the question of whether jury nullification can be an appropriate response to unjust laws. (shrink)

Recent developments in criminal legislation of the Republic of Lithuania among other significant novelties include the criminalization of illicit enrichment as criminal offence. Such offence presents new legal instrument for the law enforcement in dealing with individuals who acquire property in doubtful ways. The crime of illicit enrichment is rather a novelty within the context of criminal legislation. Such novelty was largely based upon the requirements of United Nations Convention against Corruption, which stipulates the implementation of such (...) legal measure. According to the article Twenty of the convention, “Subject to its constitution and the fundamental principles of its legal system, each State Party shall consider adopting such legislative and other measures as may be necessary to establish as a criminal offence, when committed intentionally, illicit enrichment, that is, a significant increase in the assets of a public official that he or she cannot reasonably explain in relation to his or her lawful income”. While the convention was undoubtedly major factor for making grounds for said developments the need to widen the scope of confiscation of property and impound illegally acquired wealth were the driving forces behind the political will to support amendments to the Criminal Code. At same time the new offence of illicit enrichment presents significant challenges for the investigative bodies with the prosecution as well as the courts establishing such offences. First and foremost, the techniques of criminalization and legal wording of the offence are new and do not go well with the established principles of criminalization. Unnatural features of the corpus of the crime listed in the code (article No. 1891 of the Criminal Code of Lithuania) involve criminal act lacking attributes illegitimacy, complications regarding guilt of the accused. In addition, doubts and questions regarding the fundamental principles of criminal procedure, due process concerns, and problems of the balance of the rights of the accused with the right of the society to recover illicitly acquired wealth. The relationship of illicit enrichment to other criminal acts committed by the same accused is also of a great importance in establishing sources of such enrichment. As for the time of submission of present article, one hundred and seven interrogations on the illicit enrichment were on and lasting while only three simplified judgments and one proper court sentence were passed. The reasons for such slow implementation of the law are the ambiguities of the definition of law, as well as limitations of regulations, insufficiencies in asset declaration systems, lack of theoretical background and complete absence of court practice on such cases. Two of the existing convictions are analyzed from the point of view of establishment of guilt, the evidence set in the case, the grounds of adequacy of such convictions. The examples presented give basis to judge the adequacy of the new law an opportunity to predict the future rulings of the courts. Necessity of the improvements of the law becomes quite obvious on the basis of the analysis. Strong criticisms, various scientific suggestions on the improvements of the regulations, namely on the constitution of guilt, wording of the criminal act are presented by the author. (shrink)

In German criminal law, intention is the label used not only for cases of knowledge and desire; it also includes cases of what the common law would call recklessness. German criminal law calls its approximation of recklessness dolus eventualis. It is on that concept that the article concentrates. After a brief review of the historical development of the German concept of intention, the author shows that dolus eventualis consists of two components: the cognitive element, which (as in the (...) common law) considers the state of the accused's knowledge that the offence may occur, and a volitional or dispositional element which is unknown to the common law. The author concludes that the volitional or dispositional element is not plausible, and that in any harmonization of concepts of intention in the criminal law of the European countries such an element should not be adopted. (shrink)

In crime-obsessed cultures, the rudimentary trajectories of criminalizing processes are often overlooked. Specifically, processes of accusation that arrest everyday life, and enable possible enunciations of a criminal identity, seldom attract sustained attention. In efforts at redress, this paper considers discursive reference points through which contextually credible accusations of ‘crime’ are mounted. Focusing particularly on the ethical dimensions of what might be considered a ‘lore’ (rather than law) of criminal accusation, it examines several ways that exemplary cases (...) reflect paradigms of accusatorial practice, accuser identity formation and accused response. With such assumptive grids in mind, the paper signals the potential value of rescuing accusation from fundamental attachments to (a criminally defined) order and disorder, as well as images of a distinct accuser and accused offender. It then alludes to the prospect of pursuing justice through less exclusive forms of accusation. (shrink)

This article considers the four eyewitness threshold for zinā’ in Islamic criminal law. In some Muslim-majority countries where zinā’ remains an offence, judiciaries have by-passed the threshold by accepting singular confessions from male fornicators or, otherwise, inferring fornication from pregnancy outside of marriage. As a result, a disproportionate number of women have been prosecuted, convicted, and even punished for zinā’. I assert that the four-eyewitness threshold allows for an alternative way to view zinā’ that can result in a different (...) set of consequences. If the threshold is taken seriously such that it becomes the only evidentiary basis upon which a zinā’ conviction can be entered, it will create an effective or de facto exemption where alleged perpetrators can never be convicted, except in the rarest cases where four independent eyewitnesses can be corralled. If adopted, this approach would provide a principled basis to reject opportunistic confessions that deflect punishment to accused female fornicators. And as an ‘internal’ solution that arises within the framework of the sharī’a, a de facto exemption approach is more likely to be perceived as legitimate when compared with proposed solutions that find their basis in international human rights legal instruments. (shrink)

In the first of these two lectures Professor Hart is concerned with certain controversies and changes of attitude towards the question of moral guilt—mens rea,’ the guilty mind’—in criminal proceedings according to English law. There is, on the one hand and at one extreme, the attitude of the McNaughten Rules which excludes guilt only in the case of a ‘defect of reason’; at the other extreme there is the modern position, represented by Lady Wootton according to which the conception (...) of metis rea should be dropped altogether—criminal proceedings are concerned with ‘social hygiene’ and have nothing to do with responsibility: the question of responsibility comes up only after a verdict has been reached in estimating what steps are likely to have the best consequences for the ‘criminal’ and for society. Between these extremes Professor Hart takes a kind of middle course, what he calls ‘a moderate form of the new doctrine’: ‘Under this scheme mens rea would continue to be a necessary condition of liability to be investigated and settled before conviction except so far as it relates to mental abnormality. The innovation would be that the accused person would not be able to adduce any form of mental abnormality as a bar to conviction. The question of his mental abnormality would under this scheme be investigated only after conviction and would primarily be concerned with his present rather than his past mental state’. He admits that there are some practical difficulties against this view, but he does not consider the theoretical difficulty that the theory does away with the principle that criminal conviction must be based on guilt and responsibility. (shrink)

In criminal cases at common law, juries are permitted to convict on wholly circumstantial evidence even in the face of a reasonable case for acquittal. This generates the highly counterintuitive—if not absurd—consequence that there being reason to think that the accused didn’t do it is not reason to doubt that he did. This is the no-reason-to-doubt problem. It has a technical solution provided that the evidence on which it is reasonable to think that the accused didn’t do it is (...) a different subset of the total evidence from that on which there is no reason to doubt that he did do it. It lies in the adversarial nature of criminal proceedings in the common law tradition that the subsets of the total evidence on which counsel base their opposing arguments are themselves different from and often incompatible with one another. While this solves the no-reason-to-doubt problem, it does so at the cost of triggering a second problem just as bad. It is the no-rival problem, according to which incompatible theories of the case based on incompatible subsets of the evidence cannot be rivals of one another. If neither party’s case contradicts the other’s then, by the burden of proof requirement, criminal convictions are impossible. Once having generated the dilemma, the object of the paper is to determine how it might be escaped. (shrink)

This article explores and questions traditional legal scholarship's historical presentation of the role of the accused and the relationship between the individual and the state in English criminal justice that it expresses. This perceived relationship between the individual and the state is traced through a textual and historical analysis of rules relating to questioning and to confessions. The article focuses on the ‘development’ of these rules during the 19th century when the foundations of the modern English legal system were (...) laid. The author maintains that through the conceptual categories of ‘subject’, ‘citizen’ and ‘suspect’, established legal writers have constructed the role played by the accused within an historical framework of ‘progress’. Yet when examined in the light of case law and statute from the period, that framework appears more mythical than factual as it lacks the evidential foundation to support it. (shrink)

On 25 May 1993 the United Nations Security Council took the extraordinary and unprecedented step of deciding to establish the International Criminal Tribunal for the Former Yugoslavia as a mechanism for the restoration and maintenance of international peace and security. This was an extremely significant innovation in the use of mandatory enforcement powers by the Security Council, and the manifestation of an explicit link between peace and justice - politics and law. The establishment of ad hoc tribunals for the (...) former Yugoslavia and Rwanda was followed by the adoption of the Rome Statute of the ICC in July 1998, the arrest of General Augusto Pinochet in London in October 1998, and the establishment of ad hoc tribunals in Cambodia, Sierra Leone, and East Timor, all of which pointed to an emerging norm of international criminal justice. The key to understanding this is the relationship between the political mandate and the judicial function. The Tribunal was established as a tool of politics, but it was a judicial, not a political tool.This book provides a systematic examination of the Tribunal, what it is, why it was established, how it functions, and where its significance lies. The central question is whether an international judicial institution, such as the Tribunal, can operate in a highly politicized context and fulfill an explicit political purpose, without the judicial process becoming politicized. Separate chapters chart the origins of the court, the process of establishment, jurisdiction, procedure, state co-operation, including obtaining custody of accused, and the role and function of the Chief Prosecutor. This last element is the key to the Tribunal's success in maintaining a delicate balancing act so that its external political function does not impinge on its impartial judicial status, and instead enhances its effectiveness. The book concludes with an assessment of the conduct of the Milosevic case to date. (shrink)

This chapter addresses the potential contributions of neuroscience to criminal justice decision-making and policy, with special emphasis on criminal responsibility. The central question is whether neuroscience is relevant to criminal justice. The general conclusion is that it is scarcely useful at present but may become more relevant as the science progresses. After explaining the meaning of criminal responsibility in use, the chapter speculates about the source of claims for the positive influence of neuroscience. The scientific status (...) of behavioral neuroscience and two radical challenges to responsibility neuroscience allegedly raises, determinism and the death of agency, are discussed next. Then, the specific relevance of neuroscience to criminal law and the use of neuroscience in criminal cases in the United States and abroad are addressed. The penultimate section points to some areas warranting modest optimism for the use of neuroscience in criminal justice. A brief conclusion follows. (shrink)

People can be treated unjustly with respect to the level of credibility others accord to their testimony. This is the core idea of the philosophical idea of epistemic justice. It should be of utmost interest to criminal law which extensively deals with normative issues of evidence and testimony. It may reconstruct some of the long-standing criticisms of criminal law regarding credibility assessments and the treatment of witnesses, especially in sexual assault cases. However, philosophical discussions often overlook the intricate (...) complexities of real procedural law and its underlying considerations. In its present form, the philosophical notion of epistemic injustice provides limited insights into legal discourse; it necessitates translation and adaptation. This study contributes to this endeavor by examining the contentious issue of testimony from witnesses who have undergone trauma-focused psychotherapy. Since the 1980s, courts worldwide were troubled with cases of false accusations based on false memories generated by suggestive therapeutic interventions. As a result, such post-therapy testimonies are discounted in one way or another in many jurisdictions. However, courts are still confronted with such testimonies, and the modi vivendi legal systems have established to deal with them continue to give rise to concerns about unjust treatment of witnesses. The question is thus whether legal rules or established practices of evaluating testimony based on memories which resurfaced after psychotherapy are epistemically and legally just. The paper presents seven ways in which courts may assess such testimonies and examines them in light of epistemic and procedural justice. Some of them prima facie constitute a form of epistemic injustice because they discount testimonies to an unwarranted degree. But these injustices might be justified by overriding principles favoring defendants. Nonetheless, the idea of epistemic justice, more broadly understood, inspires two principles that may serve as a foundation for a future conception of epistemic justice adapted to the law. (shrink)

Trafficking in human body parts is one of the most severe form of crime in modern times. The topicality of this phenomenon reinforces the fact that it is intertwined with organised crime and human despair. The resulting repercussions are dangerous for the “donor”, prosperous for the “intermediaries”, and vital for the “recipient”. The paper analyses the phenomenon of trafficking in human body parts, which is directly related to the development of transplant medicine and surgery. Human organ transplantation is moving toward (...) indicative ethics, as ethics of responsibility, and is gradually moving beyond imperative ethics, emphasising duty. Human organ donation is an act of self-sacrifice. Therefore, from an ethical and moral perspective, the commercialization or trafficking of human organs is unacceptable because it violates human dignity. In addition to the ethical implications, the paper analyses international documents on this topic and the Croatian normative regulations on this issue. Finally, bioethical and criminal law answers to this question are given. (shrink)

This article considers issues concerning cases where the use of placebo is lawful or is not lawful under aspects of German criminal law. It will differentiate between cases of individual therapy and cases of supervised experiments within the scope of medical tests. Thereby, it reveals that a medication of placebo with regard to an individual patient seems to be lawful if there is no alternative possibility of a better treatment using a chemically effective medicine and if the limits of (...) presumed consent are complied with. On the other hand, in the context of the supervised experiment, the assignment of a patient to a group treated with placebo is only lawful if the patient has been fully informed about the possibilities of a treatment and if the patient has given consent to it. (shrink)

In Regina v. Murray, (2000, Ont S.Ct.J.) the learned trial judge, Justice Gravely, errs in his interpretation and application of the law of mens rea in the offense of willfully attempting to obstruct justice under section 139(2) of the Criminal Code of Canada. In view of his findings of fact and law, including the determination that the accused knowingly and intentionally committed the actus reus of the offense and the absence of any suggestion that he lacked awareness of any (...) relevant facts, there is no question in law but that Kenneth Murray was liable to be, and actually should have been, convicted. Nonetheless, the trial judge concluded that Murray’s alleged belief, that his actions were required by his duty to his client, raised a reasonable doubt about his intention to obstruct justice and entitled him to be acquitted. -/- In his reasons for judgment, the trial judge analyzes mens rea as if there is a “color of right” defense to the offense of obstruction of justice. In law, however, no such defense exists to this offense. Consequently, even if Mr. Murray did “honestly believe” that he had a duty to his client not to disclose the existence of the video tapes, that belief could not provide him with an exculpatory defence. In Canada, pursuant to common law and section 19 of the Criminal Code, mistakes of law do not excuse accused persons from responsibility for criminal conduct in the absence of a statutory exception. No exception exists for the offense of obstruction of justice. Yet the Crown did not choose to appeal and thereby signaled its acceptance of the legal analysis adopted by the trial judge. By contrast, if the analysis proposed in this piece had been adopted, the Crown should have prevailed at trial and, if unsuccessful at trial, would have had a right of appeal on a question of law. -/- At least two tendencies converge as significant influences shaping the outcome in the Murray case. The central tendency, discussed in Part I of this article, is the trial judge’s treatment of the accused’s alleged mistake about his legal duty as if it were a mistake about a question of fact which therefore could give rise to a reasonable doubt about intention or culpable awareness. This approach to mistaken beliefs ignores the distinction between mistakes of law and mistakes of fact, and then characterizes all mistakes as mistakes of fact. Unfortunately, this is not uncommon in the case law. In recent years however, as explained below, the judiciary has rejected that approach in a number of leading cases and ruled that mistakes which are actually mistakes about the meaning, scope, or application of the law are subject to the general rule and do not provide an accused with an exculpatory defense. The relationship between mistake of law and mens rea in Canadian criminal law has also been the subject of critical scholarly comment in Canada in recent years. The Murray decision provides evidence that, despite clarification by the Supreme Court, in some lower courts the unrefined approach to mistaken belief continues to shape the legal analysis of criminal culpability, even when the mistaken belief is overtly a belief about the law. This will not change until the proper characterization of mistaken beliefs as legal or factual becomes a deliberate and common-place aspect of case analysis at the trial court level. -/- The other tendency, discussed in Part III of this article, is one that often appears as a companion to the first - the judicial tendency to perceive and invoke analytical legal ambiguity in favour of accuseds more readily in cases in which the impugned conduct involves the discretionary exercise of authority which, when used appropriately, is fully legitimate and essential to the normal functioning of the existing socio-legal order. Of course, courts are strongly influenced by the arguments put to them by counsel. And counsel, acting on behalf of client groups with particular group interests may, consciously or unconsciously, favour the development of those lines of analysis which are protective of that interest or associated institutional interests. One of the reasons for scrutinizing the Murray case is that it provides a concrete context for discussion of those issues in relation to an actual decision made by Crown prosecutors. The case provides an occasion to examine a specific example of the exercise of prosecutorial discretion, its implications for the administration of criminal justice, and its broader potential impact on the public interest. [See also errata in UNBLJ 2002 volume 52 at pp 309-310.]. (shrink)

Despite Kant's explicit statement that every murderer must suffer death, there are at least four situations to be found in Kant's work in which the killing of a human being should not lead to the death penalty: when too many murderers are involved; when a mother kills her illegitimate child; when one duellist kills the other; when one person pushes another off a plank in order to save his life. This paper discusses these situation and concentrates on the last situation (...) - Kant's interpretation of the plank of Carneades – with an eye to what they learn us about Kant understanding of the law. Does Kant acknowledge a legal vacuum? In order to come to a conclusion, Kant's 'solution' of the plank is compared with those suggested by other authors, such as Cicero, Pufendorf and Lon Fuller in his famous 'speluncean explorers' case. (shrink)

: The paper discusses the contribution that the neuroscience of action can offer to the legal understanding of action control and responsibility in the case of adult individuals. In particular, we address the issues that follow. What are the cognitive capacities that agents must display in order to be held liable to punishment in criminal law? Is the legal model of liability to punishment compatible with a scientifically informed understanding of voluntary behaviour? To what extent should the law take (...) into account people’s subjective feelings about their own actions? As a result of our analyses, we indicate some areas where the contribution of the neuroscience of action to the law is potentially relevant. We focus on the subjectivity mechanisms of action control, specifically the requirement that the agent must violate the law voluntarily in order to be held responsible, and on the factors that modulate the wrongdoer’s experience of agency. Overall, we advocate more cross-disciplinary work, aimed to bridge the gap between conceptual boundaries, on the theme of responsibility for actions. Keywords : Responsibility; Neurolaw; Sense of Agency; Criminal Law; Criminal Liability La responsabilità tra neuroscienza e diritto penale. La componente di controllo dell’imputabilità penale Riassunto : L’articolo discute il contributo che la neuroscienza dell’azione può offrire ai temi del controllo dell’azione e della responsabilità in ambito legale, nel caso degli individui adulti. In particolare, ci occuperemo delle questioni che seguono. Quali sono le abilità cognitive che un agente deve possedere per esser considerato penalmente responsabile e quindi punibile? Il modello legalistico della responsabilità è compatibile con il modello scientifico-naturalistico del comportamento umano? Fino a che punto variazioni nel senso di controllo soggettivo sulle azioni dovrebbero essere considerate un parametro rilevante in sede penale? Sulla scorta della nostra analisi, indicheremo alcune aree nelle quali il contributo della neuroscienza dell’azione a questioni legate al tema della responsabilità legale potrebbe rivelarsi rilevante. L’articolo si concentra sui meccanismi che regolano il senso soggettivo di controllo dell’azione – in particolare il requisito secondo il quale l’agente deve violare la legge volontariamente per essere ritenuto responsabile –, e sui fattori che modulano il senso di agentività del colpevole. In conclusione, difenderemo l’appropriatezza di una più ampia riflessione multi-disciplinare volta a ridurre le incompatibilità fra differenti approcci al tema della responsabilità per le nostre azioni. Parole chiave : Responsabilità; Neurodiritto; Senso di agentività; Diritto penale; Imputabilità penale. (shrink)

The presumption of innocence (POI) requires all judges, juries, and other officials in a trial, to presume and treat any accused of criminal wrongdoing as innocent, until he or she is proven guilty. Although a POI lacks an authoritative definition, this overarching principle of procedural fairness is so robust and vital for the exercise of legal power in matters of criminal law that one rarely finds anyone questioning its standing. In this article I examine the rationale behind the (...) POI from a different perspective. The basic assumption is that this procedural standard captures the tenor of a broader principle which seeks to ensure fairness in criminal proceedings as well as in criminal law doctrine. I argue that honouring a principle of fairness is not exclusively a matter of criminal procedural law but also something that is deeply rooted in other areas of criminal law doctrine. Hence: not maintaining a principle of fairness in criminal law doctrine could lead to the POI being compromised or even undermined. In the article, I draw attention to three areas in which I believe that criminal law policies threaten a principle of fairness: criminalising remote harm, doctrine of ignorance of law and inversed presumptions of guilt. My conclusion is that some solutions to so called doctrinal problems in criminal law, are questionable and their practical consequences (on a general level) are, at least partially, equal to treating an individual (in a trial) as guilty for something for which he or she ought not to be accountable. Hence: gaining the support of a POI could thus work as principle for keeping the use of criminal law moderate and in accordance with a principle of fairness. (shrink)

In this response to Ronnie Lippens’ and Erik Claes’ critiques of a paper entitled ‘The Lore of Criminal accusation,’ Pavlich notes the ways in which his work might be compared to, yet differentiated from, abolitionist approaches to crime. Working through Lippens’ comments, he notes a possible way to understand the analysis and politics of crime (through accusation). Pavlich challenges Claes’ optimistic hypostatization of ‘criminal law’, idiosyncratic understandings of deconstruction and refocuses attention on the centrality of (...) class='Hi'>accusation to creating criminal subjects. (shrink)

The objective of the paper is to present the differences in the grounds of appeal and the appeal proceedings against judgments issued by a court composed of representatives of the public in a criminal trial at first instance. At present, citizens are allowed to adjudicate most often in one of three forms: persons adjudicating independently without the participation of a professional factor, who are not professionals in the field of law and criminal procedure (e.g. judges of the peace (...) in the common law system); a jury composed of citizens and adjudicating mostly on guilt of the accused; or lay judges adjudicating all aspects of the case in one panel together with professional judges. However, the participation of laymen in adjudication is not a prevailing rule. Many countries legal systems do not allow the citizens to co-decide in criminal cases. The paper also indicates the arguments for the democratization of the judiciary through a wider admission of citizens to participate in criminal justice. This issue has been examined on the background of three aspects of democracy: representative, deliberative and participatory. (shrink)

Beginning with the premise that the principal function of a criminal trial is to find out the truth about a crime, Larry Laudan examines the rules of evidence and procedure that would be appropriate if the discovery of the truth were, as higher courts routinely claim, the overriding aim of the criminal justice system. Laudan mounts a systematic critique of existing rules and procedures that are obstacles to that quest. He also examines issues of error distribution by offering (...) the first integrated analysis of the various mechanisms - the standard of proof, the benefit of the doubt, the presumption of innocence and the burden of proof - for implementing society's view about the relative importance of the errors that can occur in a trial. (shrink)

Consider the following argument: (1) Whether, or the degree, persons are morally culpable ultimately depends on the (final) reasons that motivate their actions; (2) The degree to which persons are morally culpable should be a central concern of criminal law; (3) Criminal law in many countries focuses more on the beliefs and intentions of agents and less on their motivating reasons; therefore (4) Criminal law in many countries is unjust and should be revised. The premises of this (...) argument are appealing and widely accepted, yet its conclusion is radical. Therefore, the argument is interesting and important. However, the argument is not entirely clear in several respects, and the attempt to clarify it reveals several significant (although not necessarily decisive) doubts regarding its soundness. In this paper, I examine these doubts as well as a related, more general, lesson concerning normative arguments about the law. (shrink)

How often our actions go awry because our perceptions are at odds with reality! This book examines the legal issues that arise when we seek to avoid the untoward consequences of an action by claiming that our perception was flawed. We all make mistakes. Some have unfortunate consequences: we might overpay a debt or make an unfavourable contract, or we might be sued or accused of a crime as a result of our mistake. Claims to alleviation on the grounds of (...) mistake are likely to arise wherever the law prescribes a state of mind as a prerequisite for the application of a legal rule. This book asks when the fact that a person made a mistake should entitle them to alleviation. This may involve the intention to enter into a contract or a payment, in which case a person could seek its reversal, or it might involve the intent to commit a tort or crime, in which case they could seek forgiveness for the offence. Farnsworth defines 'alleviating' mistakes as those which entitle a person to relief from untoward consequences of their mistake.There is no general 'law of mistake', and despite their similarities, few discussions of mistake in one setting pause to consider mistakes in other contexts. The goals of fields as disparate as contracts and criminal law are very different: how do these differences affect the treatment of mistakes? Farnsworth sets out a new taxonomy of mistakes. His analysis reveals that over the past century, there has been a remarkable increase in the receptivity of courts and scholars to claims for both reversal and forgiveness- a waxing of alleviating mistakes. (shrink)

In the last two decades, the philosophy of criminal law has undergone a vibrant revival in Canada. The adoption of the Charter of Rights and Freedoms has given the Supreme Court of Canada unprecedented latitude to engage with principles of legal, moral, and political philosophy when elaborating its criminal law jurisprudence. Canadian scholars have followed suit by paying increased attention to the philosophical foundations of domestic criminal law. Because of Canada's leadership in international criminal law, both (...) at the level of the International Criminal Court and of specific war crimes tribunals, they have also begun to turn their attention to international criminal law per se. This collection seeks to bring all these Canadian voices together for the first time, and evidence the fact that criminal law theory is no longer to be associated exclusively with the older British, German and American traditions. The topics covered include questions of philosophical methodology, the legitimate scope of domestic and international criminalization, rationales for criminal law defences in both domestic and international law, the philosophical underpinnings of specific crimes and forms of joint responsibility, as well as the theorization of criminal procedure and evidence law. ENDORSEMENTS "In continental Europe, academic commentary on the criminal law has long manifested large philosophical ambitions. Less so in common-law countries, where the dominance of jury trial and the piecemeal development of case-law, together with the famously robust attitudes of common lawyers, have militated against detailed philosophical engagement with doctrine. Over the last 20 years or so, however, new generations of philosophically-literate lawyers and legally-informed philosophers have overcome the historic resistance. Nowhere more so, it seems, than in Canada, where the common law and civilian traditions meet. In 'Rethinking Criminal Law Theory', François Tanguay-Renaud and James Stribopoulos have joined with 14 talented Canadian colleagues to showcase the tremendous breadth and depth of their contemporary national contribution to the subject. Ranging across topics as diverse as emergency, obscenity, and insanity, these essays - without exception insightful and penetrating -set a high standard for the rest of us to aspire to.'' John Gardner, University of Oxford "'Rethinking Criminal Law Theory' is an excellent collection of essays demonstrating the vigour, creativity and range of Canadian criminal justice scholarship. It covers a wide range of problems and issues both in the domestic and the international context. Core questions are examined in depth and new questions are brought to the fore. I recommend it very highly to criminal lawyers and philosophers of the criminal law." Professor Victor Tadros, University of Warwick "'Rethinking Criminal Law Theory 'is packed with outstanding contributions from criminal law theorists who are among the best not only in Canada, but in the whole English-speaking world. Broad and deep in its coverage, the collection offers fresh approaches to a wide range of cutting-edge issues in the field. It provides a resource readers will come back to repeatedly." Stuart Green, Professor of Law and Justice Nathan L Jacobs Scholar, Rutgers University. (shrink)

Resources for Feminist Research, Vol. 3, No. 4, pp. 44-45, 1985 In this brief article, written in 1984 and published the following year, Lucinda Vandervort sets out a comprehensive agenda for enforcement of sexual assault laws in Canada. Those familiar with her subsequent writing are aware that the legal implications of the distinction between the “social” and “legal” definitions of sexual assault, identified here as crucial for interpretation and implementation of the law of sexual assault, are analyzed at length in (...) “Mistake of Law and Sexual Assault: Consent and Mens Rea” (1986), published at (1987-88) 2(2) Canadian Journal of Women and the Law, 233 309. In that article the author argued that most mistakes about consent are not mistakes about a “fact” that may sometimes negative mens rea, but are actually mistakes about the law that afford accused no excuse under either Canadian common law or statutory criminal law. She argued further that consent must be interpreted as “voluntary agreement” and must be affirmatively and unequivocally communicated in order to operate as an effective waiver of a person’s legal right to be free from interference with his or her bodily integrity. That article was a central reference point in the consultations leading to the 1992 amendments to the sexual assault provisions in the Canadian Criminal Code and in some key decisions by the Supreme Court of Canada in sexual assault cases in the 1990’s. As a result of a gradual transformation of theoretical analysis of the law of mens rea and consent in Canada, culpable awareness is now understood by many jurists and criminal law theorists quite differently than it was twenty-five years ago. As Vandervort acknowledged in her 1984 Agenda for Action, however, clarity in legal theory and legal doctrine is no guarantee of how sexual assault laws will operate in practice. Theory and practice, doctrine and its implementation, often diverge. This phenomenon is still seen in some decisions taken at the trial, pre-trial, and pre-charge stages in sexual assault cases. Police, prosecutors, and many trial judges, like accused, may often be influenced by traditional attitudes about sexual consent and mistaken about the law of consent. Accordingly, in her recent work Vandervort re-visits and re-examines the exercise of discretion by police, prosecutors, and the judiciary. An example is her 2009 article “Legal Subversion of the Criminal Justice Process? Judicial, Prosecutorial and Police Discretion in R. v. Edmondson, Kindrat and Brown” in Sexual Assault Law, Practice & Activism in a Post-Jane Doe Era, edited by Elizabeth Sheehy (Ottawa: University of Ottawa Press, 2012). In this and some of her other recent work, the distinctions between social and legal norms and questions of fact and law, previously analyzed with the objective of clarifying the law, are used to control the effects of social ignorance and partiality in the handling of sexual assault complaints by decision-makers in the criminal justice system at trial and pre-trial. Lucinda Vandervort’s published and unpublished legal and philosophical writings on sexual assault and sexual assault law illustrate the development of a socio-legal scholar’s “Agenda for Action” into a principled, pragmatic, open-ended exercise in “institutional design.” Across two centuries, from the revolutionary era of the 18th century to the present, other radical egalitarians would recognize both the impetus for the project and many features of the political and cultural resistance to it. (shrink)

In the recently published collection, Criminal Law and the Authority of the State, two contributions allude to an analogy with parental authority as a means to a better understanding of the institution of criminal punishment, but reach different conclusions. Malcolm Thorburn uses the parental authority analogy to justify the institution of state punishment as an assertion of robust authority over offenders. Antje du Bois-Pedain uses the same analogy to advocate the idea of punishment as an inclusionary practice, designed (...) to reintegrate offenders into society. I argue that Thorburn’s theory of robust authority is inconsistent if not self-contradictory when it tries to assume a liberal posture, and that du Bois-Pedain’s reintegrative model provides a better account of the justification and objectives of state punishment. (shrink)

Assume that a person who is suspected of either murdering X or raping Y credibly and voluntarily confesses to have committed ‘a terrible crime’ but immediately after this utterance decides to remain silent. The remaining available evidence cannot prove beyond reasonable doubt the exact offence which he committed. Should such an accused be acquitted of both offences and evade the law or should a way be found to allow a conviction, although no specific offence can be proven beyond reasonable doubt? (...) Harel and Porat suggest that such an accused should be convicted of an unspecific offence. This paper reaches entirely different conclusions, according to which the prevailing insistence of most Criminal justice systems on offence specificity is justified. It is argued that offence specificity stems from the cognitive psychological difficulties associated with simulating the event in question if the accused is convicted of an unspecific offence. The reason is that fact-finders are unable to simulate the details of an unspecific offence while retaining a confidence level sufficiently high to satisfy the standard of ‘beyond reasonable doubt’. The fact-finder faces a choice between a proven offence which is difficult to simulate and a group of unproven offences which are easy to simulate. These difficulties also give rise to a more solid expressivist justification for offence specificity than that conceded by Harel and Porat. Unspecific offences undermine the efficacy of condemnation because the message that corresponding convictions would broadcast to members of the public would be either blurred and ineffective or based on scenarios none of which was proven beyond reasonable doubt. This paper therefore offers two independent justifications for the prevailing insistence on offence specificity, both of which are based on the cognitive psychological difficulties of simulation, as found by the fact-finder and the public respectively. (shrink)

Following are two short contributions to the book, _Criminal Law Conversations_: commentaries on Paul Robinson's discussion of "Empirical Desert" and Antony Duff & Sandra Marshal's discussion of the sharing of wrongs.

Criminal law exceptionalism, or so I suggest, has turned into an ideology in German and Continental criminal law theory. It rests on interrelated claims about the (ideal or real) extraordinary qualities and properties of the criminal law and has led to exceptional doctrines in constitutional criminal law and criminal law theory. It prima facie paradoxically perpetuates and conserves the criminal law, and all too often leads to ideological thoughtlessness, which may blind us to the (...) dark sides of criminal laws in action. (shrink)

What place, if any, ought cultural considerations have when we blame and punish in the criminal law? Bringing together political and legal theorists Criminal Law and Cultural Diversity offers original and diverse discussions that go to the heart of both legal and political debates about multiculturalism, human agency, and responsibility.

This book pursues the argument that an attention to emotions produces a more nuanced, and more adequate, feminist account of legal subjectivity. Although the relationship between law and feminism has resulted in a vast body of work, the issue of emotions has not been foregrounded in feminist legal scholarship. Indeed, many feminists have argued that reason and not emotion must provide the foundational basis for all laws and legal reforms; an argument that has led to a division of the legal (...) and the psychic or the emotional into separate and distinct zones. Challenging this separation, the book engages a range of recent criminal law cases and legislation in India in order to advocate a 'feminisation' of law. Drawing on psychoanalytic theory, the book takes up a range of issues surrounding sexual violence in order to propose a shift from viewing law as reason to seeing law as the terrain of messy and contradictory emotional continuums; where legal subjects are viewed in their psychic dimensions, and where law itself is opened up to its own unconscious desires. Foregrounding emotions in this way, the book argues, can offer new insights into the operation of criminal law, and new orientations for feminist ways of responding to, and engaging with, it. This book will be of interest to scholars and students working in the areas of criminal law, legal feminism, and gender studies. (shrink)

Torture is unequivocally prohibited under all circumstances, whether in peacetime, wartime, or during a state of national emergency. Any justification for the use of torture is indefensible under international law. The prohibition of torture constitutes a peremptory norm (jus cogens) of international law, binding upon all states that have ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). This paper examines the provisions of the CAT in relation to Vietnam’s legal framework governing the rights (...) of the accused in criminal proceedings. The analysis reveals that Vietnam’s legal provisions lack the necessary clarity and specificity, contributing to the continued occurrence of torture coupled with an inaccurate statistical recording of such cases. To align more closely with the CAT and enhance the protection of human rights, this paper argues for the imperative need to strengthen Vietnam’s Penal Code and criminal procedure laws. Furthermore, the establishment of robust enforcement mechanisms is essential to ensuring compliance and effectiveness. The author recommends the development of a comprehensive legal framework dedicated to the protection of human rights and the formulation of strategic measures aimed at preventing torture. (shrink)

Whenever a litigant needs to prove that a certain result was caused in a specific way, what could be more compelling than citing the infinitesimal probability of that result emanating from an alternative natural cause? Contrary to this intuitive position, in the present article, I argue that the contention that a result was due to a certain cause should remain unaffected by statistical evidence of the extremely low probability of an alternative cause. The only scenario in which the low probability (...) of a natural cause would be relevant to the case at hand is if it were contrasted with another piece of statistical evidence: the frequency of the criminal activity among people who are similar to the accused. However, by connecting the use of probabilistic generalisations in legal fact-finding to the issue of free will, I hold that, in Criminal Law, contrasting frequencies in this manner is objectionable—as a matter of principle—regardless of how reliable the statistical analysis is. Consequently, if the low probability of a natural cause is probative only if contrasted with another piece of statistical evidence that is objectionable, then neither piece of evidence should be admitted in criminal trials. (shrink)

The present article is aimed at substantiating the differentiation of the criminal procedure involving the disabled persons as well as at assessing some standards of protection of rights of the latter participants of the procedure, established in the Code of Criminal Procedure of the Republic of Lithuania. The provisions of the Constitutional Court of the Republic of Lithuania, given in the present article, enabled generalizing the following two aspects. The first aspect covers the substantiation of the criminal (...) procedure relating to the criminal acts that the physically or mentally disabled persons are suspected (accused) of and application of compulsory medical measures. Specific form of criminal procedure – procedure of application of compulsory medical measures – institution of criminal procedure, covering several closely interdependent legal norms, establishing particular legal specifics of investigation of criminal act and hearing, is established in the separate structural part (Chapter XXIX) of the Code of Criminal Procedure of the Republic of Lithuania. Moreover, though the criminal procedure relating to the acts that the physically or mentally disabled persons are suspected (accused) of is not governed in one place of the Code of Criminal Procedure, it is deemed to be a specific form of criminal procedure, since it constitutes particular related legal norms of criminal procedure, determining the exceptions of the general criminal procedure. The second aspect, related to the constitutional doctrine concerning the equality principle, enabled substantiating the specific legal regulation, established and applied to the disabled participants (suspected persons, accused persons, witnesses, aggrieved persons) in the Law on Criminal Procedure. (shrink)

This book examines the relationship between legal tradition and national identity to offer a critical and historical perspective on the study of criminal law. It develops a radically different approach to questions of responsibility and subjectivity, and was among the first studies to combine appreciation of the institutional and historical context in which criminal law is practised with a critical understanding of the law itself. Applying contemporary social theory to the particular case of nineteenth-century Scottish law, Lindsay Farmer (...) is able to develop a critique of modern criminal law theory in general. He traces the development of the modern characteristics of criminal law and legal order, tracing the relationship between legal practice and national culture, and showing how contemporary criminal law theory fundamentally misrepresents the character of modern criminal justice. (shrink)

Philip Pettit has made central to modern republican theory a distinctive account of freedom—republican freedom. On this account, I am not free solely because I can make choices without interference. I am truly free, only if that non-interference does not itself depend on another’s forbearance. Pettit believes that the principal justification for the traditional focus of the criminal law is that it constitutes a bulwark against domination. I will, in part, be considering the merits of this claim. Is the (...) importance of the orthodox realm of the criminal law solely or mainly explained by the wish to protect people from domination? In short, the answer is that it is not. Across the board, the criminal law rightly protects us equally from threats to what Pettit calls ‘effective,’ as opposed to formal, republican freedom. I will develop my critique of Pettit’s account of criminal law, in part to raise questions about the role of ‘domination’ in political theory, and about whether it poses a significant challenge to liberal accounts of criminal law. (shrink)

Germany is joining a long list of European democracies that have modified or expressed a willingness to modify their citizenship laws to denationalize first and then prevent the return of or expel those citizens accused of having participated in terrorist activities abroad. The formal labelling of citizenship deprivation as an administrative measure outside the scope of criminal justice has prevented scholars of criminal law from undertaking a thorough scrutiny of its legitimacy. In this paper I seek to fill (...) this gap. Specifically, after demonstrating why deprivation of citizenship is a measure of a criminal nature, I argue against its legitimacy, either as a punishment or as a risk-based measure. Instead I propose that we should understand citizenship deprivation as a paradigmatic response from an illegitimate enemy criminal law. Notwithstanding the foregoing, I claim that states that choose to denationalize terrorists should do it within the framework of a process with the highest (criminal procedural) guarantees. (shrink)

RESUMEN: La agresión terrorista ha supuesto, a nivel nacional y internacional, el problema de la creación de un sistema penal de reacción a tal fenómeno. Sin embargo, la necesidad de una contestación urgente ha tenido como consecuencia una incertidumbre general que lleva en sí misma el riesgo de la negación del Estado de derecho para adoptar la lógica del derecho penal del enemigo. Este escrito -a través el análisis de la teoría de Gunther Jakobs, teórico del derecho penal del enemigo- (...) describe las repercusiones, parafraseando a Ferrajoli, de una falta de “asimetría entre Estados de derecho y violencia extra legal”. ABSTRACT: The fear of terrorism has created, at national and international level, a criminal law system to react to this phenomenon. The need for a rapid answer to the problem has led to legal uncertainty that carries with it the risk of the negation of the legal state to adopt the logic of the enemy's criminal law. This writing, through the analysis of the theory by Gunther Jakobs, theorist of the enemy's criminal law, describes which are the negative repercussions of a lack of "asymmetry between legal state and extra legal violence” mentioning Luigi Ferrajoli. PALABRAS CLAVE: ciudadano,enemigo,pena,derecho penal,Estado de derecho. KEYWORDS: Citizen, enemy, punishment, criminal law, legal state. (shrink)

This is a review essay of Gardner, John. 2007, Offences and Defences: Selected Essays in the Philosophy of Criminal Law, Oxford: Oxford University Press, 288 pp.

Philosophy, Theory and Criminal Law: A Review of Fran?ois Tanguay-Renaud and James Stribopoulos , Rethinking Criminal Law Theory: New Canadian Perspectives in the Philosophy of Domestic, Transnational and International Criminal Law.

The authors expose a challenge that legal dogmatics represents to our legal institutions. Legal dogmatics often claims that it plays a necessary role in identifying legal rules and in solving their indeterminacies. Thus, legal dogmatics is to be viewed as an indispensable complement to legislation. Like legislation, dogmatics also attempts to provide judges with precise guidelines to help them pass the right decisions and avoid the arbitrary ones. Only under this assumption does dogmatics help to make more predictable decisions. However, (...) the problem of dogmatics consists that the search for precision which is to intended to limit the arbitrariness of judicial decisions calls for distinctions that are per se arbitrary ones. In some cases, this arbitrariness results from an indeterminacy generated by vague rules, while in other cases the application of precise rules leads to arbitrariness because officials depart from the reasons that ground them. The challenge of dogmatics is to show that its contribution to rationality can be perceived as an improvement on the legislator’s contribution. That is, dogmatics must show why its rules can succeed where legislation inevitably fails for conceptual reasons. The authors of this paper claim the opposite. The application of dogmatic rules has the same conceptual difficulties as the application of legislated rules alone.Moreover, dogmatic solutions often contend with other formal justifications, i.e., reasons which ground legislated rules. (shrink)

The parties of the criminal process, possessing the same procedural status (the suspects, indictees), must also have the same rights and obligations; however, if such “differences” as mental disability exists between them, discrimination of the rights and obligations is objectively justifiable. Otherwise, deviation from the constitutional principles of equality between the lawful state and the persons would occur.The article is aimed at substantiating the suspect’s (indictee’s) procedural capability, which is predetermined by the person’s psychic condition. The article starts with (...) an analysis of the category of the general procedural legal subjectivity, which is composed of the procedural legal capacity and the procedural capability. It is stressed that the problem with the suspect’s (indictee’s) procedural subjectivity is related to the items on acquisition of the party’s possibility (permission) to act and on the realization of this possibility (making use of the subjective rights and implementation of the legal obligations) in the course of the process. The Constitutional Court of the Republic of Lithuania has noted that, generally speaking, legal subjectivity is to be considered as a tool for defending one’s rightful interests. The criminal procedural capability, which is not legally consolidated in Lithuania, contrariwise to the civil procedural capability, is investigated further on in the article. The author submits several scientific provisions, with the help of which she reveals the content of the suspects’ (indictees’) procedural capability via the criteria of his/her intellect and will. Certain points of contact of substantiation of such procedural capability, with the doctrine of the countries, which practice both general and continental law, are indicated. (shrink)