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This book analyses a selection of leading works in the criminal law
to ask questions about how the modern discipline of criminal law
has developed, how it has been deployed in colonial and
postcolonial contexts, and how criminal law scholarship has engaged
with traditionally marginalised perspectives such as feminism,
queer theory, and anti-carceral and abolitionist movements. The
works analysed range from Macaulayās Indian Penal Code (1837) to
more recent textbooks and monographs on criminal law, and their
jurisdictional reach extends to India, Canada, Australia, Malawi,
the UK and the USA. The contributing authors include scholars,
activists and legal practitioners, each of whom explores the
intellectual development and geographical reach of Anglocriminal
law via the work they analyse. Across the collection, the editors
and contributors address the question of what it means to be a
leading work in criminal law. The book will be a valuable resource
for students, academics and researchers working in the area of
criminal law.
Modern Histories of Crime and Punishment showcases a variety of
disciplinary, methodological, and theoretical approaches that,
taken together, contribute to our understanding of the history of
criminal law. The book features work done by historians, lawyers,
theorists, and sociologists on the history of criminal law and
highlights how this multidisciplinary scholarship can help to frame
critical analysis in the study and teaching of modern criminal law.
As Modern Histories makes clear, the historical analysis of crime
and punishment is not a freestanding inquiry into a distinct
institution or body of legal doctrine, but in the end amounts to a
daunting, yet exhilarating, venture into the webs of governance and
control that constitute social and political life.
Modern Histories of Crime and Punishment showcases a variety of
disciplinary, methodological, and theoretical approaches that,
taken together, contribute to our understanding of the history of
criminal law. The book features work done by historians, lawyers,
theorists, and sociologists on the history of criminal law and
highlights how this multidisciplinary scholarship can help to frame
critical analysis in the study and teaching of modern criminal law.
As Modern Histories makes clear, the historical analysis of crime
and punishment is not a freestanding inquiry into a distinct
institution or body of legal doctrine, but in the end amounts to a
daunting, yet exhilarating, venture into the webs of governance and
control that constitute social and political life.
Can traditional approaches to criminal jurisdiction adapt to the
new global reality of the digital era? In this innovative book,
leading experts in criminal, international and internet law unite
to address this fundamental question. They consider how
jurisdictional regimes are orientated around concepts of
territoriality and extraterritoriality, how these categories are
increasingly blurred in the digital era, and how a range of
jurisdictional transformations are occurring in the process. Part I
presents novel doctrinal, empirical and theoretical perspectives on
criminal jurisdiction, exploring how states are shaping and
reimagining jurisdictional concepts in the crafting and
interpretation of criminal offences, and the ramifications of
increasing jurisdictional concurrency in state practice. Part II
focuses on the investigative and enforcement powers of the state to
assess how these issues are transforming traditional understandings
of jurisdictional rules and boundaries, the challenges and
opportunities that these present for law enforcement authorities,
and the sorts of constraints and safeguards that may be necessary
as a result. The picture that emerges is a world of jurisdictional
rules in a state of flux, which demands the diversity of legal
perspectives presented in this book for documenting, rationalising
and moving beyond the transformations that are taking shape in
modern statecraft.
The criminal trial is under attack. Traditional principles have
been challenged or eroded; in England and Wales the right to trial
by jury has been restricted and rules concerning bad character
evidence, double jeopardy and the right to silence have been
substantially altered to "rebalance" the system in favour of
victims. In the pursuit of security, particularly from terrorism,
the right to a fair trial has been denied to some altogether. In
fact trials have for a long time been an infrequent occurrence,
most criminal convictions being the consequence of a guilty plea.
Moreover, while this very public struggle over the future of the
criminal trial is conducted, there is also a less publicly observed
controversy about the significance of trials in modern society.
Trials are under normative attack, their value being doubted by
those who seek different kinds of process - conciliatory or
restorative - to address the needs of victims and move away from
the imposition of state power through trials and punishments. This
book seeks to develop a normative theory of the criminal trial as a
way of defending the importance of trials in our criminal justice
system. The trial, it is suggested, calls defendants to answer a
charge and, if they are criminally responsible, to account for
their conduct. The trial is seen as a communicative process through
which the defendant can challenge claims of wrongdoing made against
him, including the norms in the light of which those claims are
made. The book develops this communicative theory by first making a
careful study of the history of trials, before moving on to outline
the theory, which is then developed through chapters looking at the
practices and principles of trials, alternative regulatory models,
the roles of participants, the relationship between investigation
and trial and trials as public fora.
What are the aims of a criminal trial? What social functions should
it perform? And how is the trial as a political institution linked
to other institutions in a democratic polity? What follows if we
understand a criminal trial as calling a defendant to answer to a
charge of criminal wrongdoing and, if he is judged to be
responsible for such wrongdoing, to account for his conduct? A
normative theory of the trial, an account of what trials ought to
be and of what ends they should serve, must take these central
aspects of the trial seriously; but they raise a number of
difficult questions. They suggest that the trial should be seen as
a communicative process: but what kinds of communication should it
involve? What kind of political theory does a communicative
conception of the trial require? Can trials ever actually amount to
more than the imposition of state power on the defendant? What
political role might trials play in conflicts that must deal not
simply with issues of individual responsibility but with broader
collective wrongs, including wrongs perpetrated by, or in the name
of, the state? These are the issues addressed by the essays in this
volume. The third volume in this series, in which the four editors
of this volume develop their own normative account, will be
published in 2007.
This book examines the relationship between legal tradition and national identity to offer a critical and historical perspective on the study of criminal law. Developing a radically different approach to questions of responsibility and subjectivity, it combines appreciation of the institutional and historical context in which criminal law is practiced with an informed understanding of the law itself. Drawing on original research into the development of Scottish criminal justice, it offers the first full-length critique of modern criminal law theory.
This collection of essays honours the work of Sir Gerald Gordon CBE
QC LLD (1929-). In modern times few, if any, individuals can have
been as important to a single country's criminal law as Sir Gerald
has been to the criminal law of Scotland. His monumental work The
Criminal Law of Scotland (1967) is the foundation of modern
Scottish criminal law and is recognised internationally as a major
contribution to academic work on the subject. Elsewhere, he has
made significant contributions as an academic, judge and as a
member of the Scottish Criminal Cases Review Commission. Reflecting
the academic rigour and practical application of Sir Gerald's work,
this volume includes essays on criminal law theory, substantive law
and evidence and procedure by practitioners and academics within
and outside of Scotland, including contributions from England,
Ireland and the USA. Key Features: *chapters encompass a broad
range of subjects of contemporary interest and significance *both
substantive and procedural criminal law *contributors from
practitioners and academics from both within and outwith Scotland,
reflecting the influence and recognition afforded to Sir Gerald's
work.
This book is a critical and historical study of the theory of
criminal law which examines, in particular, the relationship
between legal tradition and national identity, while developing a
radically new approach to questions of responsibility and
subjectivity. Previous studies have focused either on the
philosophical bases of the criminal law or on the sociology and
social history of crime, but there has been little exchange between
the two. Lindsay Farmer's is one of the first extended attempts to
draw on both fields in order to analyse the body of theorising
about the criminal law as a whole. It displays a rare knowledge of
the legal, institutional and historical contexts in which criminal
law is practised, in combination with an informed understanding of
the law itself. Dr Farmer uses contemporary social theory to
develop an account of the relationship between legal practice and
national culture in Scotland, analysing the belief in the
distinctive spirit or 'genius' of Scots law. An exploration of the
boundary between national limits and the universal aspirations of
criminal law theory reveals the specifically modern characteristics
of the criminal law and exposes how contemporary criminal law
theory fundamentally misrepresents the character of modern criminal
justice.
The trial is central to the institutional framework of criminal
justice. It provides the procedural link between crime and
punishment, and is the forum in which both guilt and innocence and
sentence are determined. Its continuing significance is evidenced
by the heated responses drawn by recent government proposals to
reform rules of criminal procedure and evidence so as to alter the
status of the trial within the criminal justice process and to
limit the role of the jury. Yet for all of the attachment to trial
by jury and to principles safeguarding the right to a fair trial
there has been remarkably little theoretical reflection on the
meaning of fairness in the trial and criminal procedure, the
relationship between rules of evidence, procedure and substantive
law, or the functions and normative foundations of the trial
process. There is a need, in other words, to develop a normative
understanding of the criminal trial. The book is based on the
proceedings of two workshops which took place in 2003, addressing
the theme of Truth and Due Process in the Criminal Trial. The
essays in the book are concerned with the question of whether, and
in what sense, we can take the discovery of truth to be the central
aim of the procedural and evidential rules and practices of
criminal investigation and trial. They are divided into four parts
addressing distinct but inter-related issues: models of the trial
(Duff, Matravers, McEwan); the meaning of due process (Gunther,
Dubber); the meaning of truth and the nature of evidence (Jung,
Pritchard); and legitimacy and rhetoric in the trial (Burns,
Christodoulidis).
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