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.

Criminalization is a new series arising from an interdisciplinary investigation into the issue of criminalization, focussing on the principles and goals that should guide decisions about what kinds of conduct are to be criminalized, and the forms that criminalization should take. Developing a normative theory of criminalization, the six volumes will tackle the key questions at the heart of issue: By reference to what principles and goals should legislations decide what to criminalize? How should criminal wrongs be classified and differentiated? And how should law enforcement officials apply the law's specification of offences? The second volume in the series concerns itself with the structures of criminal law in three different senses. The first examines the internal structure of the criminal law itself and the questions posed by familiar distinctions between which offences are typically analysed. These questions of classification include discussion of the growing range of crimes and the problems posed by this broadening of definition. Should traditional ideas and conceptions of the criminal law be reshaped in light of recent developments or should these developments be criticized and refuted? Structures of criminal law also refer to the place of the criminal law within the larger structure of the law. Here the book examines the relationships with and between the criminal law and other aspects of law, particularly private law and public law. It also looks at how the criminal law is made, and by whom. Finally the third sense of structure is outlined - the relationships between legal structures and social and political structures. What place does the criminal law have within the existing political and social landscapes? What are the influences, both political and social, upon the criminal law, and should they be allowed to influence the law in this fashion? What is its proper role? Focussing not only on the questions about the criminal law's proper scope, but also on crucial questions about how crimes should be structured, defined, and classified, this book provides a deeper understanding of criminalization.

The Criminalization series arose from an interdisciplinary investigation into criminalization, focussing on the principles that might guide decisions about what kinds of conduct should be criminalized, and the forms that criminalization should take. Developing a normative theory of criminalization, the series tackles the key questions at the heart of the issue: what principles and goals should guide legislators in deciding what to criminalize? How should criminal wrongs be classified and differentiated? How should law enforcement officials apply the law's specifications of offences? The fourth book in the series examines the political morality of the criminal law, exploring general principles and theories of criminalization. Chapters provide accounts of the criminal law in the light of ambitious theories about moral and political philosophy - republicanism and contractarianism, or reflect upon on the success of important theories of criminalization by viewing them in a novel light. Ideas that are fundamental to any complete theory of the criminal law - liberty, harm, and the effect on victims - are investigated in depth. Sociological investigation of the criminal law grounds a critical investigation into the principles of criminalization, both as a legislative matter, and with respect to criminalization practices, in contemporary and historical contexts. The volume broadens our conceptions of the theory of criminalization, and clarifies the role of the series in the development of this theory. It is essential reading for all interested in legal, political, and social theories of criminalization.

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

This book considers the proper nature and scope of criminal responsibility in the light of its institutional and political role. Tadros begins by providing a general account of criminal responsibility which is based on the relationship between the action that the defendant has performed and his or her character. He then moves on to reconsider some of the central doctrines of criminal responsibility in the light of that account. Part 1 examines the nature of criminal responsibility by exploring what it means for an agent to be responsible for an action and the constraints that there are on holding an agent criminally responsible which arise from the particular social and institutional role that the criminal law has. Tadros develops a character theory of criminal responsibility. Character, he argues, is relevant both in determinig which action an agent is responsible for, as well as the kind of fault that he has in respect of those actions. However, he shows some limitations in the character theory of criminal responsibility as it has been defended to date,developing a version that is not susceptible to the central objections that habe been levelled at character theories. Finally Part 1 investigates the structure of criminal responsibility, considering the distinction between offence and defence, and investigating how best to categorise and structure defences. In Part 2, Tadros moves on to consider some of the central doctrines of criminal responsibility in the light of the general theory developed in Part 1. He examines the proper nature and role of causation and investigates whether there is a general principle o criminal omissions. The book then explores the nature and role that intentions and beliefs ought to nave in a theory of criminal responsibility. Tadros also provides an account of different kinds of defence: exemptions, justifications and excuses. The book includes a thorough account of the different ways in which mental disorders might ground defences, the different kinds of normative standards that the criminal law ought to set in offence and defence contexts, and whether particular deficiencies of the accused ought to be accommondated in setting those standards.

Every modern democratic state imprisons thousands of offenders every year, depriving them of their liberty, causing them a great deal of psychological and sometimes physical harm. Relationships are destroyed, jobs are lost, the risk of the offender being harmed by other offenders is increased and all at great expense to the state. How can this brutal and costly enterprise be justified? Traditionally, philosophers answering this question have argued either that the punishment of wrongdoers is a good in itself (retributivism), or that it is a regrettable means to a valuable end, such as the deterrence of future wrongdoing, and thus justifiable on consequentialist grounds. This book offers a critical examination of those theories and advances a new argument for punishment's justification, calling it the 'duty view'. On this view, the permission to punish offenders is grounded in the duties that they incur in virtue of their wrongdoing. The most important duties that ground the justification of punishment are the duty to recognize that the offender has done wrong and the duty to protect others against wrongdoing. In the light of these duties the state has a permission to punish offenders to ensure that they recognize that what they have done is wrong, but also to protect others from crime. In contrast to other justifications of punishment grounded in deterrence, the duty view is developed in the light of a non-consequentialist moral theory: a theory which endorses constraints on the pursuit of the good. It is shown that it is normally wrong to harm a person as a means to pursue a greater good. However, there are exceptions to this principle in cases where the person harmed has an enforceable duty to pursue the good. The implications of this idea are explored both in the context of self-defence, and then in the context of punishment. Through the systematic exploration of the relationship between self-defence and punishment, the book makes significant progress in defending a plausible set of non-consequentialist moral principles that justify the punishment of wrongdoers, and marks a significant contribution to the philosophical literature on punishment.

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).

To Do, To Die, To Reason Why offers a new account of the ethics of war and the legal regulation of war. It is especially concerned with the conduct of individuals, including whether they are required to follow orders to go to war, what moral constraints there are on killing in war, what makes people liable to be killed in war, and the extent to which the laws of war ought to reflect the morality of war. Victor Tadros defends a largely anti-authority view about the morality of war, and notable moral constraints on killing in war, such as the Doctrine of Doing and Allowing and a version of the Doctrine of Double Effect. However, he argues that a much wider range of people are liable to be harmed or killed in war than is normally thought to be the case, on grounds of both causal involvement and fairness. And it argues that the laws of war should converge much more closely with the morality of war than is currently the case.

This book considers the proper nature and scope of criminal responsibility in the light of its institutional and political role. Tadros begins by providing an account of the foundations, both ethical and political, of criminal responsibility, and moves on to reconsider some of the central doctrines of criminal responsibility.
Part 1 examines the nature of criminal responsibility by employing a distinctive new conception of autonomy. Tadros explores the nature of autonomy, and asks what it means to respect autonomy. Building upon this consideration of autonomy, Tadros then explores the central conditions of responsibility. He provides the first systematic consideration of the relationship between criminal responsibility and liberal political theory, showing how the conditions of responsibility are articulated in, and restrained by, the institutional setting of the criminal law.
In Part 2, Tadros moves on to consider some of the central doctrines of criminal responsibility. He examines the proper nature and role of causation, intentions, and beliefs; asking whether these concepts should be understood as descriptive or normative. The book moves on to provide a systematic normative investigation of the nature and role of criminal omissions and criminal defenses. Included are: a thorough account of the different ways in which mental disorders might ground defenses, the nature of justification defenses, the different kinds of excuse claim and the role that particular characteristics of the accused might have on the standards which the defendant must have met to escape criminal responsibility.

The Criminalization series arose from an interdisciplinary investigation into criminalization, focussing on the principles that might guide decisions about what kinds of conduct should be criminalized, and the forms that criminalization should take. Developing a normative theory of criminalization, the series tackles the key questions at the heart of the issue: what principles and goals should guide legislators in deciding what to criminalize? How should criminal wrongs be classified and differentiated? How should law enforcement officials apply the law's specifications of offences? The sixth volume in the series offers a philosophical investigation of the relationship between moral wrongdoing and criminalization. Considering they justification of punishment, the nature of harm, the importance of autonomy, inchoate wrongdoing, the role of consent, and the role of the state, the book provides an account of the nature of moral wrong doing, the sources of wrong doing, why wrong doing is the central target of the criminal law, and the ways in which criminalization of non-wrongful conduct might be permissible.

Every modern democratic state imprisons thousands of offenders every year, depriving them of their liberty, causing them a great deal of psychological and sometimes physical harm. Relationships are destroyed, jobs are lost, the risk of the offender being harmed by other offenders is increased and all at great expense to the state. How can this brutal and costly enterprise be justified? Traditionally, philosophers answering this question have argued either that the punishment of wrongdoers is a good in itself (retributivism), or that it is a regrettable means to a valuable end, such as the deterrence of future wrongdoing, and thus justifiable on consequentialist grounds. This book offers a critical examination of those theories and advances a new argument for punishment's justification, calling it the 'duty view'. On this view, the permission to punish offenders is grounded in the duties that they incur in virtue of their wrongdoing. The most important duties that ground the justification of punishment are the duty to recognize that the offender has done wrong and the duty to protect others against wrongdoing. In the light of these duties the state has a permission to punish offenders to ensure that they recognize that what they have done is wrong, but also to protect others from crime. In contrast to other justifications of punishment grounded in deterrence, the duty view is developed in the light of a non-consequentialist moral theory: a theory which endorses constraints on the pursuit of the good. It is shown that it is normally wrong to harm a person as a means to pursue a greater good. However, there are exceptions to this principle in cases where the person harmed has an enforceable duty to pursue the good. The implications of this idea are explored both in the context of self-defence, and then in the context of punishment. Through the systematic exploration of the relationship between self-defence and punishment, the book makes significant progress in defending a plausible set of non-consequentialist moral principles that justify the punishment of wrongdoers, and marks a significant contribution to the philosophical literature on punishment.

Criminalization is a new series arising from an interdisciplinary investigation into criminalization, focusing on the principles and goals that should guide decisions about what kinds of conduct are to be criminalized, and the forms that criminalization should take. Developing a normative theory of criminalization, the six volumes will tackle the key questions at the heart of the issue: By reference to what principles and goals should legislations decide what to criminalize? How should criminal wrongs be classified and differentiated? And how should law enforcement officials apply the law's specification of offenses?
Boundaries of the Criminal Law is the first book in this series examining the scope and boundaries of the criminal law. Investigations into the scope of the criminal law have often focused on the harm principle, the principle that conduct can be justifiably criminalized only if it is harmful, or other master principles that might determine the proper scope of the criminal law. This collection of original essays by some of the leading scholars in criminal law and philosophy from the UK and the US makes significant advances in the development of a broader range of ideas that might inform criminalization decisions.
A range of issues are discussed, including the significance for criminalization of ideas of moral wrongdoing and of using a person as a means, the distinction between criminal law and other forms of legal regulation, the role of new technology in our understanding of the evolving scope of the criminal law, and the role of criminal justice officials in decision-making about criminalization. The authors draw on legal and philosophical sources, but also on history, sociology and social psychology in their investigations for a truly interdisciplinary approach.
This is a groundbreaking set of essays which will help to reorient legal and philosophical discussion about the proper scope of the criminal law.

The Criminalization series arose from an interdisciplinary investigation into criminalization, focussing on the principles that might guide decisions about what kinds of conduct should be criminalized, and the forms that criminalization should take. Developing a normative theory of criminalization, the series tackles the key questions at the heart of the issue: what principles and goals should guide legislators in deciding what to criminalize? How should criminal wrongs be classified and differentiated? How should law enforcement officials apply the law's specifications of offences? The sixth volume in the series offers a philosophical investigation of the relationship between moral wrongdoing and criminalization. Considering they justification of punishment, the nature of harm, the importance of autonomy, inchoate wrongdoing, the role of consent, and the role of the state, the book provides an account of the nature of moral wrong doing, the sources of wrong doing, why wrong doing is the central target of the criminal law, and the ways in which criminalization of non-wrongful conduct might be permissible.

This collection of essays explore the long-standing,intricate relationship between law and faith. Faith in this context is to be read in the broadest sense, as extending beyond religion to embrace the knowledge, beliefs, understandings and practices which are at work alongside the familiar and seemingly more reliable, trusted and relatively certain content and conventionally accepted methods of law and legal reasoning. The essays deal with three broad themes. The first concerns the extent to which faith should be involved in legal decision making. Ought decisions to aspire simply to right reason or ought faith-based models of decision-making to be incorporated into the legal system? If the latter, how is this best done? Ought faith to operate simply as a reason itself or ought it to help to structure the method by which legal decisions are reached? The second, and perhaps most familiar theme, stemming in part from rights discourse, is the extent to which law does, and ought to, respect the rights of those whose religious beliefs conflict with the dominant social norms and practices. Liberal democratic constitutions typically provide protection for religion and religious beliefs. Are these justified, and if so how? Can such protection as exists suffice from the perspective of the faithful, or does law's otherwise pervasive agnosticism make this impossible or illusory? Thirdly, questions of identity and difference arise. Assuming that most societies remain a mix of many faiths (religious and secular) and no faith, how should law and legal theory understand the varying and, it must be said, conflicting claims for recognition. Should we encourage conformity in the hope of reducing friction, or should we preserve and promote difference, seeking to understand others, whether groups or individuals, without removing that which makes them distinct? More radically and controversially, should we be more sceptical of individual and group claims to authenticity and see them rather as strategies in an ongoing power game? Faith after all, like reason and law, has never been far from politics and intrigue, especially in its institutional representation. Contributors: Zenon Bankowski, Anthony Bradney, Claire Davis, John Gardner, Adam Gearey, Tim Macklem, Maleiha Malik, Victor Tadros.