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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.
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 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.
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.
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.
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.
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.
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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