The Preventive Turn in Criminal Law

The book consists of the keynote papers delivered at the 2012 WG Hart Workshop on Globalisation, Criminal Law and Criminal Justice organised by the Queen Mary Criminal Justice Centre. The volume addresses from a cross-disciplinary perspective the multifarious relationship between globalisation on the one hand, and criminal law and justice on the other hand. At a time when economic, political and cultural systems across different jurisdictions are increasingly becoming or are perceived to be parts of a coherent global whole, it appears that the study of crime and criminal justice policies and practices can no longer be restricted within the boundaries of individual nation-states or even particular transnational regions. But in which specific fields, to what extent, and in what ways does globalisation influence crime and criminal justice in disparate jurisdictions? Which are the factors that facilitate or prevent such influence at a domestic and/or regional level? And how does or should scholarly inquiry explore these themes? These are all key questions which are addressed by the contributors to the volume. In addition to contributions focusing on theoretical and comparative dimensions of globalisation in criminal law and justice, the volume includes sections focusing on the role of evidence in the development of criminal justice policy, the development of European criminal law and its relationship with national and transnational legal orders, and the influence of globalisation on the interplay between criminal and administrative law.

The article is devoted to the study of the problem of establishing the relationship between the criminal law and criminal procedure aspects of legal certainty. The author establishes that legal certainty within criminal justice is a dichotomous category, since it combines the requirements (rules) of criminal law and criminal procedure, and the category of legal certainty itself is a polymorphic construction in terms of content and essence, which gives grounds to consider legal certainty as a) a property of a rule of law; b) a principle of law; c) a requirement for a court decision; d) consequences (properties) of the legal force of a court decision; e) grounds for reversal of a court decision; f) a subjective right of a person to know what he or she is accused or suspected of; g) a criterion for realization of the legal status of participants to criminal law and criminal procedural relations. The criminal law manifestation of legal certainty relates exclusively to the properties of criminal law provisions and the relevant principle of criminal law, but it has a formative and guiding effect on criminal procedural manifestations of the principle of legal certainty and is interrelated with them. The author distinguishes three levels of legal certainty as a universal legal category of criminal law and criminal procedure law: normative (legislative), law enforcement and scientific (doctrinal). It is stated that legal certainty is not only a guarantee for an individual against arbitrary actions of the State within the criminal justice system, but also an opportunity for him/her to clarify his/her legal status within criminal law and criminal procedure relations, and to expect only predictable criminal law and criminal procedure consequences of actions of bodies and persons authorized by the State to apply criminal law response measures. If, as a result of legal uncertainty of criminal law provisions, a person does not understand the consequences of his/her behavior within criminal law relations, such a person will not be able to timely and adequately correct his/her behavior in order to change his/her legal status in accordance with the requirements of criminal law provisions. As a result, the law on criminal liability itself loses its regulatory value

Philosophical study of the criminal justice system is a branch of political philosophy. This should be obvious from the fact that the criminal justice system is one of the central institutions of the state. In light of this, it is puzzling that despite the fact that a great deal of excellent work is being done both on the philosophy of the criminal law and in political theory, engagement between the two scholarly communities remains quite limited. Most major treatises on political theory have almost nothing to say about criminal justice—John Rawls’ A Theory of Justice (1999), Joseph Raz’s The Morality of Freedom (1986), Ronald Dworkin’s Sovereign Virtue (2000) are classic examples. At the same time, most major treatises on the philosophy of the criminal law are at best very tentative about the political dimensions of the project, and leave these dimensions undefended. The most ambitious general theories of the criminal law that have recently been provided, such as Michael Moore’s Placing Blame (1997) and Antony Duff’s Answering for Crime (2007), have limited ambitions in outlining the general political theory within which a theory of criminal justice is to be defended. As contemporary criminal law theory demonstrates, a great deal of progress can be made on many of the most important questions about the justification of criminal justice institutions and practices without situating them within a comprehensive political theory. It may even be argued, as Adil Haque does in his contribution to this Special Issue, that the ability of a political theory to provide suitable answers to questions of criminal justice is a requirement of a satisfactory political theory. Nevertheless, the importance of political theory to questions of criminal justice can hardly be doubted. Surely the lack of adequate engagement between these two branches of moral and political philosophy is to be lamented. This is so even if, as Haque suggests, it is too much to expect every philosopher of the criminal law to become a political theorist. To paraphrase Haque, even if we cannot expect every philosopher of the criminal law to engage in political theory we can expect him or her to engage with political theory. No doubt the somewhat unfortunate state of affairs where philosophers of the criminal law and political philosophers have not engaged with each other as much as might be

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.

The article discusses the definition and correlation of the concepts of "conflict" and "competence" and provides various expert opinions on this. In the methodology it is an analytical research based on documentary. In modern scientific literature, the clash of the rules of criminal law is called conflict of laws, using the definitions indicated as identical concepts. However, the authors point to the controversial nature of such an interpretation of those concepts. The causes of conflicts in the rules of Russian law are analyzed. Thereis also a detailed analysis of conflicts in the rules of domestic criminal law and criminal executive law. In the context of the topic studied, the authors refer to the categories of criminal law and criminal executive law as the principles of criminal law. It emphasizes by way of conclusion that the conflicts identified are not an exhaustive list, simply the authors of this work managed to consider only some aspects of the subject, therefore the conclusions and suggestions are not indisputable. In any case, the discussion of these issues is important to achieve coherence in the rules of criminal law and criminal executive law.

The criminal law's person is a multifaceted exploration of how substantive criminal law takes humans – or makes them out – to be. As explained in the editors’ efficient and perspicacious introduction essay, the criminal law's person might be set by how people actually are, what they ought to be, or some purpose-driven fictional construct (p.8). The book's final essay, ‘Implicit bias, self-defence and the reasonable person’, by Jules Holroyd and Federico Picinali, unpacks ‘reasonable person’ belief-based exculpatory tests in defensive force law in England and Wales and the United States and evaluates them for their facilitation of morally problematic cognitive bias, which, the authors conclude, ‘cannot be avoided in the presence of racist social structures’ (p.167). The authors push past the ‘reasonable person’ as the empirically ordinary person (p.179) to the possessor of reasonably-based and non-culpably held beliefs. But there remains, I think, further scope for consideration of the ‘reasonable person’ as an optional heuristic for getting at the actual standard of reasonableness. At least one of the jurisdictions under consideration does not even use the phrase ‘reasonable person’ in statute, but uses ‘reasonable’.1 The standard of ‘reasonable’ itself is never wrong, only its application can be wrong, and the authors’ points about implicit biases could be redeployed in regard to its application. Holroyd and Picinali invoke a conduct rules and decision rules framing distinction for their evaluation. This dual evaluation is perhaps one reflection of what Claes Lernestedt (in his contribution, ‘Standard-setting versus tracking “profound” blameworthiness: what should be the role of the rules for ascription of responsibility’) identifies as criminal law's tension between forward-looking ambitions and its limiting constraints (p.56). Lernestedt calls for criminal law to seek ‘“profound” blameworthiness in the concrete person’ (p.73). This concrete person is the actual person, not the construct, and to appreciate them in criminal law we need more input from disciplines such as psychiatry and psychology (p.73). Broadly speaking, similar concern arises in the essays by Michael Thorburn (‘In search of the criminal law's person’), Alan Norrie (‘Victims who victimise: guilt in political theory and moral psychology’) and Craig Reeves (‘Responsibility beyond blame: unfree agency and the moral psychology of criminal law's persons’). These essays each develop critical reaction to the criminal law orthodoxy that assumes the would-be (non-insane) criminal defendant as a rational autonomous agent. They question the very possibility of the criminal law's authority. Thorburn is quite demanding about the level of political understanding needed on the part of the defendant for legitimate criminal liability imposition. It is difficult to go along with Norrie's styling of the recipient of structural social injustice as a ‘victim’ in the same sense as a victim of a crime. Reeves proceeds with more nuance and no hyperbole. Norrie and Reeves both weave masterfully and informatively through, among other things, psychological guilt literature, as Thorburn does with 20th-century criminal responsibility theory. Kai Hamdorf, a judge of the German Federal Court of Justice, contributes ‘The criminal law's person and normative elements in the legal definition of excusing circumstances’. This is a concise and elucidating account of German criminal law's self-rationalisation that pays critical attention to how it sorts exculpating from non-exculpating human disordering. Hamdorf regrets that matters of practicality and policy determine the conceptualisation of the person. But the person is not necessarily reconceptualised by the rules under scrutiny, for example, the rule requiring that blood alcohol be 10% higher for severe crimes than for lower-level crimes in order for a defendant to avail of possible partial or full exculpation due to intoxication (p.48). Hamdorf notes the standard justification as ‘people generally have a psychological hindrance or barrier to kill other human beings’ and says it is ‘hard to imagine that any psychiatrist would say that 10 per cent more alcohol is needed for a loss of control in murder than in cases of bodily harm’ (pp.48–49). But such line-drawing rules are not attempting to precisely reflect physiological and neurological reality in the first place, they do not pass or fail rational evaluation solely by reference to psychiatry; they are meant to be arbitrary (within limits) and unmistakably policy-driven. As it happens, German criminal law is a comparative leading light at doing the thing – facilitating intoxication and mental disordering to be variously and non-bluntly reflected in criminal liability – which Hamdorf says falls short of German constitutional standards of responsibility and blameworthiness (p.50). Matt Matravers, in ‘The criminal law's various persons’, uses an ex ante and ex post frame for surveying the criminal law's conceptualisations of the person. Matravers, like Hamdorf and several other contributors to The criminal law's person, in effect, urges the criminal law to get a more accurate picture of the actual person than currently the case. No one calls for the criminal law to double down on its fictions. Nonetheless, Robin Zheng (‘Attributability and accountability in the criminal law’) develops a rich analytical distinction that, among other things, could aid rationalisation of current criminal law. Responsibility as attributability is simply the appraisal of an action. Responsibility as accountability is the assigning of some consequence, such as a burden, for the action (p.78). For some theorists, attributability is a precondition to accountability. Zheng shows how attributability and accountability converge in explaining criminal responsibility: attributability reflects moral responsibility and accountability reflects the political question of the distribution of duties and burdens across the community via criminally enforced obligations and punishment (p.80). According to Zheng, justificatory accounts of criminal law may be classed as attributability-first or as accountability-first accounts (p.77). Attributability-first accounts are more concerned to respond to the criminal law's person as a moral agent; they have a metaphysical understanding of the person. Accountability-first theories, which are less prominent than attributability-first accounts, are concerned with the person taking their place in the community's network of duties; these theories have a political conception of the person. It would seem that accountability-first theories would be more comfortable with fictional constructs of the person than attributability-first theories. But not always. Thorburn's essay, for instance, could be read as an accountability-first theory that needs the criminal law's person to (really) be something they not always are. This being just one connecting thought prompted by this fascinating book of individually excellent criminal law theory essays which collectively amount to something even greater than their sum.

International Criminal Justice is a controversial concept, and there is a burgeoning body of literature on its exact contours. Understood broadly, the term “international criminal justice” covers a broad category, integrating international criminal law (ICL) within an overarching interdisciplinary enterprise also “incorporating philosophical, historical, political and international relations, sociological, anthropological and criminological perspectives” (Roberts, 2007). International criminal law consists, at its core, of a combination of criminal law and public international law principles. The idea of individual criminal responsibility and the concept of prosecuting an individual for a specific (macrocriminal) act are derived from criminal law, while the classical (Nuremberg) offenses form part of (public) international law and thus the respective conduct is directly punishable under ICL (principle of direct individual criminal responsibility in public international law). The dualistic base of international criminal law is also reflected in the reading of the mandates of the international criminal tribunals; one can either take a “security, peace, and human rights”–oriented approach or a “criminal justice”–oriented approach, either of which may entail a paradoxical goal or purpose ambiguity of international criminal law. In any case, the strong grounding in criminal law, together with the actual enforcement of international criminal law by way of international criminal proceedings and trials, converts international criminal law into criminal law on a supranational level and thus entails the full application of the well-known principles of liberal, post-enlightenment criminal law, in particular the principles of legality, culpability, and fairness. These principles constitute the minimum standard of any criminal justice system based on the rule of law and thus must also apply in an international criminal justice system. The adoption of the Rome Statute of the International Criminal Court (ICC) in 1998 and the effective establishment of the Court in 2002 have led to an institutionalization of international criminal law, turning the page on ad hoc imposition in favor of a treaty-based universal system. In addition, the Rome Statute provides for the first codification of international criminal law, with a potentially universal reach. Therewith, international criminal law was not only united into a single penal system of the international community, but it was also extended beyond its fundamental core areas of substantive and procedural law into other branches of criminal law (law of sanctions, enforcement of sentences, and judicial assistance).

"The Justice of Mercy is exhilarating reading. Teeming with intelligence and insight, this study immediately establishes itself as the unequaled philosophical and legal exploration of mercy. But Linda Meyer's book reaches beyond mercy to offer reconceptualizations of justice and punishment themselves. Meyer's ambition is to rethink the failed retributivist paradigm of criminal justice and to replace it with an ideal of merciful punishment grounded in a Heideggerian insight into the gift of being-with-others. The readings of criminal law, Heideggerian and Levinasian philosophy, and literature are powerful and provocative. The Justice of Mercy is a radical and rigorous exploration of both punishment and mercy as profoundly human activities." ---Roger Berkowitz, Director of the Hannah Arendt Center for Ethical and Political Thinking, Bard College "This book addresses a question both ancient and urgently timely: how to reconcile the law's call to justice with the heart's call to mercy? Linda Ross Meyer's answer is both philosophical and pragmatic, taking us from the conceptual roots of the supposed conflict between justice and mercy to concrete examples in both fiction and contemporary criminal law. Energetic, eloquent, and moving, this book's defense of mercy will resonate with philosophers, legal scholars, lawyers, and policymakers engaged with criminal justice, and anyone concerned about our current harshly punitive legal system."  ---Carol Steiker, Harvard Law School "Far from being a utopian, soft and ineffectual concept, Meyer shows that mercy already operates within the law in ways that we usually do not recognize. . . . Meyer's piercing insights and careful analysis bring the reader to think of law, justice, and mercy itself in a new and far more profound light." ---James Martel, San Francisco State University How can granting mercy be just if it gives a criminal less punishment than he "deserves" and treats his case differently from others like it? This ancient question has become central to debates over truth and reconciliation commissions, alternative dispute resolution, and other new forms of restorative justice. The traditional response has been to marginalize mercy and to cast doubt on its ability to coexist with forms of legal justice. Flipping the relationship between justice and mercy, Linda Ross Meyer argues that our rule-bound and harsh system of punishment is deeply flawed and that mercy should be, not the crazy woman in the attic of the law, but the lady of the house. This book articulates a theory of punishment with mercy and illustrates the implications of that theory with legal examples drawn from criminal law doctrine, pardons, mercy in military justice, and fictional narratives of punishment and mercy. Linda Ross Meyer is Carmen Tortora Professor of Law at Quinnipiac University School of Law; President of the Association for the Study of Law, Culture and the Humanities; and Associate Editor of Journal of Law, Culture and the Humanities. Jacket illustration: "Lotus" by Anthony James

This chapter further develops the diagnosis of a revival of character in contemporary criminal law. First, it offers a more differentiated conceptual framework for identifying the waxing and waning influence of character in criminal law. In doing so it sets out, deliberately, from a broad definition of character as a pattern or practice of responsibility-attribution which is premised in whole or in part on an evaluation or estimation of the quality of the defendant's (manifested or assumed) disposition as distinct from his or her conduct. Second, drawing on this broad model of character, the chapter demonstrates the variety of ways in which contemporary criminal law is marked by a resurgence of character. Third, it sketches an extra-doctrinal explanation of why we have seen a resurgence of interest in and reliance on ideas of character responsibility: one which finds the roots of the ideology of responsibility which shapes the criminal law in broad practices of criminalization, themselves influenced by a political, economic, and social context. Finally, it draws some conclusions from this analysis for methodology in criminal law theory, and in particular for the appropriateness of a framework which locates its interpretation of criminal responsibility primarily within a conceptual analysis of legal doctrine in isolation from its context.

This essay seeks to contribute to our understanding of how the 'genetic revolution' might affect our thinking about criminal law. Would a developing belief that there is a genetic basis to behaviour lead to a different basis for the way we think about criminal law, and in particular about criminal responsibility? Although that is a very large question, not least because there are many, contradictory ways of approaching crime, criminal law and criminal justice, it is not an especially novel one. The nature-nurture debate has appeared in many forms in the development of criminological theories, and theories of criminal law and punishment have long been locked in a struggle between individual responsibility or free will versus social or biological determinism. To this debate we can then add the (belated) contributions of feminist theorists on the gendered nature of crime and criminal law and the important insights of social and cultural theorists in relation to the meaning of blame and responsibility. Drawing on debates about the relationship between law and science, the paper distinguishes between theories which explain abnormality and those which tell us something of 'normality', and concludes that notions of criminal responsibility are generally resistant to explanations (whether from internal or external circumstances) which seek to excuse behaviour. The thesis developed is an essentially negative one, both in its rejection of the idea that the genetic revolution poses particular questions for criminal law and in its reminder that criminal law itself reflects generally the worst things about a society. Like any other available 'knowledge',2 genetics will be a resource to be exploited as the handmaiden of the coercive and controlling tendencies of the criminal justice system. Insofar as the genetic revolution tells us something about ourselves, it will be reflected in criminal law.

Criminal punishment has traditionally been the most elementary and obvious expression of the state's sovereign power. As evidenced by the ready appeal to punishment in the international community as well as in the European Union, the institution of punishment also provides an important medium for expressing the majesty of new super-entities as well as of traditional states. One would expect, therefore, that the theory of punishment and of criminal law would be high on the agendas of those interested in the philosophical foundations of the state. Yet in contemporary writing on political theory, particularly in English, neither criminal law nor criminal procedure receives much attention. (1) The converse is also true: those writing on criminal theory rarely see the connection between their internal disputes--say, about victims' rights and impossible attempts--and the broader issues, not only of political but of philosophy. In this essay I assess the way in which certain basic positions about the nature of state and society work themselves out in criminal law. In the absence of a developed literature on political and criminal theory, most of these arguments will be novel attempts to lay the groundwork for further discussion. I begin by projecting implications for criminal law from specific theories, known by the conventional labels of libertarian, liberal, communitarian, and perfectionist approaches to using criminal sanctions. Then I turn to the problem of legitimacy in both domestic and international criminal law. The distinction between political and theory is critical to the argument. Some writers today use the term moral so broadly that their usage obfuscates the important distinction between the state's acting legitimately and individuals acting morally. (2) The political addresses the power and prerogatives of state officials--that is, of human beings cast into a particular role of enforcing criminal prohibitions. The focuses primarily on the lives of individuals, both in their personal flourishing and in their relationships with other individuals. An example of the kind of the argument I seek to avoid is the conventional claim about desert. The argument goes like this. Some people--really bad people like Adolph Eichmann or Slobodan Milosevic--deserve to be punished. Because they a certain consequence, it follows that the state is justified in delivering it. This is a non sequitur. An extreme version of the non sequitur is found in the retributive theory of Michael Moore who argued that because individuals feel guilty, they should be punished according to their guilt. (3) Missing are the critical premises first that it is the business of the state rather than of God (or the victim or the victim's family) to punish the offender, and second that the offender's feelings of guilt are a reliable indicator of that which should be punished and of the appropriate degree of punishment. (4) The popular language of just deserts reveals the depth of our confusion. Just because the offender might punishment, it does not follow--without an appropriate theory of state power--that the state should assess the degree of deserved punishment and use its power to impose it on the offender. The quick assumption that the state is entitled to punish offenders who deserve it is one of the unfortunate banalities of criminal law in our time. The logical gap between the offender's desert and someone's or some entity's authority is well understood in Jewish law and in other religious legal systems. Genesis 9:6 tells us that whoever sheds the blood of man, by man shall his blood be shed. This is comparable to claims about desert. The killer may to die but it does not follow that the state is entitled to kill him. We should think about this conceptual divide as the distinction between and political theory. The specifies what people deserve. …

The principle of nullum crimen sine culpa in Polish criminal law from a constitutional perspective

Contemporary criminal law aims to balance the public’s need to punish harmful behavior with the moral choice of the individual agent who causes harm. The principle of individual criminal responsibility in criminal law focuses on human actions and omissions as the foundations of guilt. Although the debate on free will and agency continues to play a role in contemporary criminal law, criminal responsibility is based on a normative understanding of these notions. This understanding presupposes human agency and the capacity to appreciate the wrongfulness of one’s actions and the ability to conduct one’s behavior accordingly. However, when this capacity is affected by internal or external circumstances, criminal responsibility can be excluded or diminished. This chapter focuses on the different ways of understanding criminal responsibility among various legal systems by comparing the definition and scope of individual criminal responsibility, culpability, and the place of strict responsibility within criminal law and later compares some of the more common defenses affecting the criminal capacity of the defendant: insanity, diminished responsibility, intoxication, and infancy. These defenses shall be compared according to various common law and civil law systems according to their definitions, fields of application, and legal consequences.

The German and the Dutch criminal justice systems not only share a common legal history but also follow the inquisitorial tradition with the prosecution playing a strong role. Despite these commonalities, there are a number of remarkable differences between the two jurisdictions, particularly with a view to procedural law and legal practices. While the German criminal law is known for being formal and rather doctrinal, the Dutch system is strongly driven by pragmatism and efficiency. This efficiency has become an important factor for the progressing Europeanization of criminal law and increasingly influences German criminal procedural law. This article compares selected aspects of the Dutch and German criminal justice systems. While previous legal comparative studies of the two neighbouring countries have focused on substantive criminal law, this paper will mainly deal with procedural criminal law and prosecutorial practices. The emphasis will be on criminal justice effectiveness and efficiency. Some of the questions addressed are: what constitutes an efficient criminal justice system? How is efficiency defined and implemented in legal practice? A variety of indicators for criminal justice efficiency are proposed and applied to criminal proceedings, prosecutorial practices and the sentencing systems in both countries.

In recent decades, a new school of criminal law theory has emerged. Its proponents reject the traditional story that criminal law ought to be justified on either retributivist or utilitarian grounds alone. Instead, they argue that justifications for criminal law must be rooted in a broader political theory of the state’s authority. While this political theory turn is becoming increasingly dominant in the literature, it gives rise to two significant challenges that scholars have thus far failed to recognize. These challenges emerge when we turn our attention from an internal, domestic view of the state to the world beyond its borders. First, the conception of the state at the heart of the leading political theory accounts of criminal law seems to sit in a vacuum. However, when we recognize that each political community exists in a world of states and persons beyond its boundaries, we begin to see that conditions external to the state might undermine the very possibility of the sort of state authority these accounts propose. Second, the political theory turn seems to pose an important challenge for international criminal law, which on the standard account is viewed to be unconnected to any particular political community. If the justification for criminal law must be anchored in a political theory of the state, it is unclear how we could ever justify instances of criminal law that seem to be untethered from a state. In this Article, I argue that these two challenges have a common solution, which comes into view when we rethink the standard picture of international criminal law. Far from being untethered from the state, international criminal law is deeply connected to the state; indeed, international criminal law functions to secure a particular form of the system of states. And in doing so, international criminal law upholds the global conditions necessary for the state as conceived by this new line of criminal law theorists to function. With this perspective, international criminal law no longer seems like an outlier to a political theory of criminal law, but rather a necessary precondition for it. And the vision of the state at the heart of the political theory accounts no longer seems detached from the world beyond its borders, but rather is a constituent part of a global system of states, each acting to maintain that system.