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Vol 22 No 7 July/August 2017

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Liberal Criminal Theory: Essays for Andreas von Hirsch (eBook)

Edited by: A.P. Simester, Antje du Bois-Pedain, Ulfrid Neuman

ISBN13: 9781782254560
Published: August 2014
Publisher: Hart Publishing
Country of Publication: UK
Format: eBook (ePub)
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This book celebrates Andreas (Andrew) von Hirsch's pioneering contributions to liberal criminal theory. He is particularly noted for reinvigorating desert-based theories of punishment, for his development of principled normative constraints on the enactment of criminal laws, and for helping to bridge the gap between Anglo-American and German criminal law scholarship. Underpinning his work is a deep commitment to a liberal vision of the state.

This collection brings together a distinguished group of international authors, who pay tribute to von Hirsch by< engaging with topics on which he himself has focussed. The essays range across sentencing theory, questions of criminalisation, and the relation between criminal law and the authority of the state. Together, they articulate and defend the ideal of a liberal criminal justice system, and present a fitting accolade to Andreas von Hirsch's scholarly life.

Subjects:
Criminal Law, eBooks
Contents:
Part 1: Punishment and Prevention
1. Punishment Paradigms and the Role of the Preventive State Andrew Ashworth and Lucia Zedner
I. The Role of Prudential Disincentives
II. The Scope of the State’s Authority to Censure
III. The State’s Preventive Obligation
IV. Developing the Preventive Obligation
V. Conclusion 2. Prevention, Censure and Responsibility: The Recent Debate on the Purposes of Punishment* Claus Roxin 23
I. Overcoming the Simple Contrast between Two Strands of Theories?
II. The Shortcomings of Traditional ‘Absolute’ and ‘Relative’ Theories of Punishment
III. Principled Limits on Punishment, Guilt and Censure
IV. Why Must the Perpetrator Allow Himself to be Roped in for the Achievement of the State’s Preventive Aims?
V. On the Expressive Function of Punishment
VI. Conclusion
3. Prevention with a Moral Voice JR Edwards and AP Simester
I. Reconciling Desert and Deterrence
II. Respecting Persons: Hegel and the Moral Voice
III. Not Treating People as Means
IV. Conclusion
4. The ‘Deserved’ Punishment* Ulfrid Neumann
I. ‘Effective’ versus ‘Deserved’ Punishment: a Hypothetical Scenario
II. The Deserved Punishment: an Essential Component of ‘Absolute’ (Deontological) Theories of Punishment
III. The Deserved Punishment in Complex (‘Unified’) Theories of Punishment
IV. The Culpability Principle: Ways towards its Recognition within a Theory of Punishment
V. The Culpability Principle as an Integral Component of the Institution of Punishment
VI. Punishment as Reaction and as Retribution
Part 2: Punishment, Desert and Communication
5. After the Crime: Post-Offence Conduct and Penal Censure Julian V Roberts and Hannah Maslen
I. Introduction
II. Defining Post-Offence-related Conduct
III. Justifying the Mitigating Role of Commendable POC: An Offence-seriousness Approach
IV. A More Expansive Account of the Normative Value of POC: Censure and Broader Retributive Values
V. Some External Objections to POC as a Sentencing Factor
VI. Conclusions
6. Does Punishment Honour the Offender?* Kurt Seelmann
I. Overview
II. Reprobation and Treatment as a ‘Moral Agent’, ie as a Participant in Moral Discourse
III. Punishment as Honouring the Offender in German Idealist Philosophy
IV. What are the Differences between Strawson and the German Idealists with respect to the Function of Penal Censure?
V. Imputation and the Person prior to Idealism: Attribution of Responsibility as a way of Taking Identity Seriously
VI. Criticising this Tradition with Assistance from Hegel? (The Case of Forgiveness)
7. Criminal Law, Crime and Punishment as Communication Klaus Günther
I. Punishment: From Welfare Instrumentalism to Moral Expressivism
II. The Communicative Turn
III. Punishment as Communication
IV. What does the Crime Say?
V. What does the Criminal Law Say?
VI. Why Hard Treatment?
VII. Communication as an Action
VIII. Again: Punishment as Communication
8. Can Deserts Be Just in an Unjust World Michael Tonry
I. Recognition of the ‘Unjust World’ Problem
II. Deep Disadvantage and Criminal Behaviour
III. Deep Disadvantage as an Excuse or Mitigation
IV. Social Adversity in Mitigation
V. A Celebration
Part 3: Rechtsgüter, Harm and Offence in Criminalisation 9. ‘Rights of Others’ in Criminalisation Theory Tatjana Hörnle
I. Strengths and Weaknesses of the Harm Principle
II. Legal Moralism as the Only Alternative?
III. The Tasks of Law
IV. The Concept of ‘Rights’
V. Legal Rights Claims versus Moral Rights
VI. A Final Remark
10. The Harm Principle and the Protection of ‘Legal Goods’ (Rechtsgüterschutz): a German Perspective* Winfried Hassemer
I. Dedication
II. Harm Orientations through the Doctrine of Legal Goods and the Harm Principle
III. Aims of the Harm-Orientation Doctrines
IV. Limits
11. ‘Remote Harms’ and the Two Harm Principles RA Duff and SE Marshall
I. The Two Harm Principles
II. Remote Harms and the Harmful Conduct Principle
III. The Harm Prevention Principle and Regulatory Offences
IV. Why Should We Obey?
12. Using ‘Quality of Life’ to Legitimate Criminal Law Intervention: Gauging Gravity, Defining Disorder Nina Peršak
I. Assessing Harm
II. Developing a Quality of Life Conception of Harm
III. Application of the Model in Different Cultural Settings
IV. Quality of Life in Defining and Regulating Disorder? Distinction from Security Discourses
V. Concluding Thoughts
13. Criminal Liability for Offensive Behaviour in Public Spaces* Wolfgang Wohlers
I. Searching for Standards of Legitimate Criminal Legislation
II. Concluding Remarks
Part 4: Criminal Justice in a Liberal State
14. Can Punishment Be Just?* Bernd Schünemann
I. The Three Levels of Penal Justice
II. A Penal Theory fit for Contemporary European Culture
III. Just Punishment Requires a Just Demarcation of Criminal Conduct
IV. The Requirements of Penal Justice Regarding the Structure of the Criminal Trial
V. Concluding Remarks
15. Punishment and the Ends of Policing John Kleinig
I. Is Punishment Ever a Legitimate Police Function?
II. The Criminal Justice System
III. The Police Role (or the Ends of Policing)
IV. Police and Punishment
V. Conclusion
16. The Place of Criminal Law Theory in the Constitutional State Antje du Bois-Pedain
I. Criminal Law Theory in German Constitutional Jurisprudence
II. Shaping the Interface between Constitutional Law and Penal Theory through a Constitutional ‘Right not to be Punished’? The Limited Potential of Constitutional Incorporation
III. What Penal Theory has to Offer Law and Practice in a Constitutional State
IV. Concluding Remarks
17. Criminal Law Theory and the Limits of Liberalism Paul Roberts
I. Questioning the Liberal Consensus in Contemporary
Criminal Law Theory
II. Liberal Political Morality, in Miniature
III. Liberal Criminal Law Theory for Liberals
IV. Two Theoretical Limitations: Incompleteness and Indeterminacy V. From Liberal Criminal Law Theory to Cosmopolitan Criminal Jurisprudence