Contemporary Criminal Law Research Articles

Protecting and Respecting Civilians

There is a gap between the international humanitarian law of Geneva and the international criminal law of Rome, a gap between the law we have and the law we need if we are to “ensure respect for and protection of the civilian population” caught in the midst of armed conflict. The Rome Statute of the International Criminal Court fails to fully enforce four core principles of humanitarian law designed to protect civilians: distinction, discrimination, necessity, and proportionality. As a result, it is possible for a combatant with a culpable mental state, without justification or excuse, and in violation of humanitarian law, to kill civilians, yet escape criminal liability under the Rome Statute. The Rome Statute also ignores or misapplies three fundamental criminal law distinctions: between conduct offenses and result offenses, between material elements and mental elements, as well as between offenses and defenses. These distinctions are not empty formalisms but rather are the means by which any system of criminal law gives expression to its underlying moral values. The purpose of this article is to expose these defects and propose a way to overcome them. Drawing on contemporary criminal law theory, it offers a new approach to war crimes against civilians, one that better protects and respects the value of civilian life. This article proposes a redefined offense of Willful Killing that fully incorporates the principles of distinction and discrimination as well as a new affirmative defense that fully incorporates the principles of necessity and proportionality. Only by adopting such an approach can international criminal law provide civilians the legal protection and moral recognition they deserve. The recent adoption of an operative definition of the crime of aggression during a Review Conference in June 2010 suggests that further reform of the Rome Statute is achievable.

Regulatory Crime: History, Functions, Problems, Solutions

This paper offers a response to concerns that have been expressed in Ireland about the growth in the use of criminal law as an instrument for empowering state agencies to investigate and prosecute breaches of regulatory rules. The criticism appears to be concerned not only with the diffuse enforcement of regulatory crime but also with the risks to the essential character of criminal law associated with the growth of strict liability offences. I argue in the paper that diffuse criminal law enforcement goes back many centuries and pre-dates modern attempts to centralise the enforcement of crimes against person and property in the office of the Director of Public Prosecution. Similarly the emphasis on the mental element in contemporary criminal law is relatively modern. This argument does not take away from real concerns that the bifurcation of criminal law between ‘regulatory’ and ‘real’ crime creates problems. I discuss the potential for greater use of administrative penalties for breaches of regulatory rules, but conclude that such an approach is never likely to offer a complete solution to enforcement within regulatory regimes. Whatever may happen with the development of administrative penalties we are likely to be stuck with the presence of a range of serious strict liability offences, policed by specialized agencies. Accordingly a richer mutual understanding of the traditional and regulatory worlds of criminal law will be required.

The Definition of the Crime of Aggression for the Purpose of the International Criminal Court: Problems and Perspectives

The definition of the crime of aggression for the purpose of the Rome Statute of the International Criminal Court (ICC) remains a key issue of contemporary international criminal law. The work accomplished to date by the Preparatory Commission for the ICC and the Special Working Group on the Crime of Aggression has resulted in promising draft amendments to the Rome Statute, which defines the crime on the basis of relevant international law sources and suggests workable mechanisms of interaction between the Court and the United Nations Security Council. This article examines the draft amendments in a critical way and recommends substantial and procedural improvements. In particular, the respective roles of the International Court of Justice and the United Nations General Assembly for the determination of acts of aggression are reconsidered, and a more ‘measurable’ definition of the crime of aggression is proposed. It is suggested that the new rules of the Rome Statute, if duly recognized, should affect the practice of both the International Criminal Court and the Security Council, as well as of other relevant principal organs of the United Nations, such as the International Court

On the Book of Job, Justice, and The Precariousness of the Criminal Law

The criminal law has been subject to both increased demands in the societal functions that it is expected to perform, and heightened scrutiny for those points at which it fails to achieve these ends. The resulting pressures put into question the criminal law's capacity to perform justice. Rather than turning to contemporary sources to assess the criminal law's relationship to claims of justice, the author uses an analysis of the ancient myth found in the Book of Job as a means of exposing the irresolvable tensions at the core of the criminal law system's quest for justice. In the end, injustice manifests as senseless suffering. The profound precariousness of contemporary criminal law is that its prescribed task is to make sense of suffering but it is always unable to wholly achieve this goal and is, indeed, always on the precipice of making things worse.

Korupcija u međunarodnom i uporednom krivičnom pravu - 1. deo

Criminal acts of corruption belong to the group of criminal acts connected to official authority and they constitute different forms of misuse of power. Those are different kinds of active (giving the bribe) and passive (taking the bribe) bribes recognized by many contemporary criminal laws, and several international acts, including the acts of the United Nations, Council of Europe and European Union. Since the corruption of individuals and groups presents a great threat especially in transitional and multiethnic societies the inter-national community (universal international community through United Nations and regional organizations such as Council of Europe and European Union with appropriate organizations and agencies within its scope) established a solid legal basis and instruments for organized common actions in revealing, prosecuting, processing and repressing these criminal acts. The activities of the European Union are of special significance here and this paper deals with attempts and activities of specialized international security organizations within EU.

Responsabilidad, dolo eventual y doble efecto

En el Derecho penal contemporáneo, debido a la creciente importancia de la doctrina del dolo eventual, la distinción entre resultados intentados y consecuencias previstas no es tomada como normativamente relevante. De acuerdo a esta doctrina, ambos efectos de nuestras acciones son equivalentes al momento de atribuir responsabilidad penal. Por el contrario, en filosofía moral se utiliza esta distinción por medio de la doctrina del doble efecto que entiende que nuestra responsabilidad es mayor cuando provocamos un daño de manera directa que cuando el daño es producto de nuestra intención oblicua. Nuevas aproximaciones a la doctrina del doble efecto conectan esta estrategia con el liberalismo moral y político. Si el Derecho penal necesita estar justificado por principios liberales —como las constituciones y los códigos penales parecen exigir––, la doctrina del doble efecto genera un importante desafío a nuestras concepciones de responsabilidad penal. Más específicamente, este trabajo sostiene que la doctrina del doble efecto provee de una mejor solución al problema de la distinción entre resultados intentados y consecuencias previstas que la doctrina del dolo eventual.

Space, time and function: intersecting principles of responsibility across the terrain of criminal justice

This paper considers the interpretive significance of the intersecting relationships between different conceptions of responsibility as they shift over space and time. The paper falls into two main sections. The first gives an account of several conceptions of responsibility: two conceptions founded in ideas of capacity; two founded in ideas of character, and one founded in the relationship between an agent and the outcome which she causes. The second main section uses this differentiated conceptual account to analyse and interpret certain aspects of the contemporary criminal law of England and Wales. In conclusion, the paper considers a number of hypotheses about what the evidence of certain shifts in the relationship between the three families of responsibility-conception can tell us about the current state and significance of criminal law among other systems of social governance.

Wechsler's Century and Ours: Reforming Criminal Law in a Time of Shifting Rationalities of Government

Wechsler’s Century and Ours: Reforming Criminal Law In a Time of Shifting Rationalities of Government Jonathan Simon • If we are to avoid dictatorship, we must be content to face problems that are of trivial importance to a dictator. 1 I. Introduction: Herbert Wechsler and the 20 th Century Herbert Wechsler who died in 2000 at over 90, led a life in the law that could well define the legal 20 th century in America. Students today might first encounter him as a constitutional scholar whose article “Toward Neutral Principles of Constitutional Law.” 2 was for decades discussed as the most principled intellectual criticism of the Supreme Court’s greatest 20 th century decision, Brown v. Board of Education. 3 Wechsler was one of the leading exponents of the legal process school that dominated academic law in the 1950s and 1960s. 4 Along with Herbert Hart, Wechsler was the original co-author of the most influential casebook in that quintessentially 20 th century field legal field “federal courts.” 5 Wechsler served as the reporter for the Model Penal Code, 6 which since the 1960s has served as the most influential source of modern criminal law reform thought for American scholars and state legislatures. 7 His casebook on criminal law, co-authored with Jerome Michael became the template for all contemporary criminal law casebooks and perhaps the modern casebook more generally. 8 A teacher at Columbia Law School for over half a century, Wechsler also helped define the role of the law professor in the post-World War II legal academy and influenced its relationship with other institutions including the social sciences and government. It is in these last two roles that I want to draw on Wechsler in the 1930s, when his approach to criminal law (and I would speculate his view of law more generally) entered into its public form, to reflect on the criminal law at moments of history when the very Professor of Jurisprudence and Social Policy, Boalt Hall, School of Law, UC Berkeley Caveat, at 633 73 Harv. L. Rev. 1 (1959) 347 U.S. 483 (1954) Harold Edgar, “Herbert Wechsler and the Criminal Law: A Brief Tribute,” 100 Colum. L. Rev. 1347, 1355 (2000). Avowed admirers of the legal process school in the current faculty of American law schools today are few. Like other dominant academic theories of the post-World War II period, it often seems tainted by having co-existed with national security hysteria in the political mix of that day, but there is one point at least, on which I for one, would want to wholly affirm the legal process school and that was its focus on law as a form of governance, and of legal expertise as a form of expertise about governance. Henry Hart and Herbert Wechsler, Federal Courts and the Federal System (Brooklyn, NY: Foundation Press 1953) American Law Institute, Model penal code and commentaries : official draft and revised comments, with text of Model penal code as adopted at the 1962 annual meeting of the American Law Institute at Washington, D.C., May 24, 1962 (1985) “MPC” hereinafter Sanford Kadish, Fifty Years of Criminal Law: An Opinionated Review, 87 Cal. L. Rev. 943, 946 (1999) Herbert Wechsler and Jerome Michael, Criminal Law and its Administration: Cases, Statutes, Commentaries (Chicago: Foundation Press, 1940)

Joel Feinberg on Crime and Punishment: Exploring the Relationship Between The Moral Limits of the Criminal Law and The Expressive Function of Punishment

When I was originally approached to participate in this Symposium on the work and legacy of Joel Feinberg, I immediately began thinking about the influence of his essay The Expressive Function of Punishment on contemporary criminal law theory in the United States. That essay has contributed significantly to a growing body of scholarship associated with the resurgence of interest in expressive theories of law. In the criminal law area, the expressivist movement traces directly and foremost to Feinberg’s essay. As Carol Steiker observes, “Joel Feinberg

After the 'Social Meaning Turn': Implications for Research Design and Methods of Proof in Contemporary Criminal Law Policy Analysis

The social norm movement in criminal justice has received a lot of attention in academic and public policy circles. This essay critically examines social norm writings and explores some of the implications for methods of proof and research design in the social sciences. In the process, the essay offers an alternative theoretical approach. This alternative focuses on the multiple ways in which the social meaning of practices (such as juvenile gun possession, gang membership, or disorderly conduct) and the social meaning of policing techniques (such as juvenile snitching policies, youth curfews, or order-maintenance policing) may shape us as contemporary subjects of society. This alternative theoretical approach has its own important implications for methods of proof and research design, and the essay develops these implications into a four-prong research agenda.

The Universal Grammar of Criminal Law

concepts such as murder and manslaughter, intent and negligence, and insanity and mistake, are characteristic of other systems of criminal law as well, and, if so, what role they play there. In the last generation, no criminal law scholar has made better use of comparative law techniques than George Fletcher, the Cardozo Professor of Jurisprudence at Columbia Law School. And, not coincidentally, no scholar has done more to define and probe the fundamental principles of our own system of criminal justice. Now, twenty years after the publication of his classic Rethinking Criminal Law,' Fletcher offers Basic Concepts of Criminal Law, a concise, fair-minded, and remarkably clear synthesis of virtually all of the major debates in contemporary criminal law theory. Basic Concepts should be of interest to at least three groups of readers. The first group comprises students in advanced criminal law classes, who will benefit from Fletcher's gift for finding concrete language to explain abstract concepts. The second group consists of teachers and scholars of substantive criminal law, who will want to see how Fletcher has clarified and augmented many of the arguments first made in Rethinking. The third group is potentially much broader. The most novel and provocative feature of Basic Concepts is its claim to offer a deep structure or universal grammar of criminal law, one that transcends the enacted law of particular states and coun-

After the “Social Meaning Turn”: Implications for Research Design and Methods of Proof in Contemporary Criminal Law Policy Analysis

The social norm movement in criminal justice has received a lot of attention in academic and public policy circles. This essay critically examines social norm writings and explores some of the implications for methods of proof and research design in the social sciences. In the process, the essay offers an alternative theoretical approach. This alternative focuses on the multiple ways in which the social meaning of practices (such as juvenile gun possession, gang membership, or disorderly conduct) and the social meaning of policing techniques (such as juvenile snitching policies, youth curfews, or order-maintenance policing) may shape us as contemporary subjects of society. This alternative theoretical approach has its own important implications for methods of proof and research design, and the essay develops these implications into a four-prong research agenda.

Assessing the expert: a call for reciprocal disclosure in Canada.

The requirement that the state disclose to an accused person all evidence in its possession which is not clearly irrelevant is a tenet fundamental to contemporary criminal law in Canada. In essence, the right to full answer and defence implies that the individual be allowed to completely understand the case which has been brought against him or her. This paper examines the concept of reciprocal disclosure, whereby the defence is obligated to provide evidence to the state. The confines of the ensuing discussion are limited to expert evidence and, more particularly, to psychiatric and psychological testimony. By arguing that early production of an expert's opinion advances rather than retards the interests of justice, the author attempts to debunk some of the myths which are used in Canadian legal circles to justify the suppression of opinion evidence by the defence until the last possible moment.

Acceptance: The Missing Mental State

This article identifies a serious shortcoming in the traditional criminal law mental state hierarchy and proposes a new mental state-- called acceptance -- as a solution. Acceptance exists where the actor acts recklessly and, in addition, would have acted even ?had he known? that his conduct would ?cause the harm.? The article establishes, through close analysis of the wilful blindness and depraved-heart murder doctrines, that use of the mental state of acceptance is both practicable and necessary. When liability lines are drawn at the level of knowledge, the criminal law has rarely been satisfied to restrict liability to actual knowledge, but instead has relied on ambiguously defined crimes (such as depraved-heart murder) or has stretched the definition of (for example, through the wilful blindness doctrine) to push reckless conduct across the liability line to the side. These ?solutions? have failed. When contemporary criminal law draws a significant liability line between and recklessness, doctrine governing cases near the margin is both particularly vague and distinctly lacking in consensus in comparison to most areas of the criminal law. The article proposes that where the law requires knowledge, acceptance should be allowed to suffice. After justifying such an approach from both retributive and utilitarian perspectives, the article establishes, by examining the willful blindness and depraved-heart murder doctrines, that using acceptance would yield a better fit between criminal law and culpability concepts and would substantially diminish vagueness problems. The need for acceptance is also demonstrated in briefer examinations of three other criminal law areas: knowledge of the law, attempt and battery. In support of the practicability of acceptance as a measure of culpability, the article also surveys the criminal law's use of hypothetical questions to determine culpability in several other areas. These include the doctrines of recklessness, entrapment, and the German concept of bedingter vorsatz.

Philosophy of Criminal Law.

This study offers both a penetrating examination and assessment of the theory and principles that underlie contemporary Anglo-American substantive criminal law, and a critique of what the author perceives as basic inadequacies in the accepted orthodox theory of criminal law. Noted legal theorist Douglas N. Husak analyzes the reasoning behind the general principles of modern criminal law theory and demonstrates the relationship between criminal law theory and its contemporary practice. Husak's central argument is that the interpretation and application of the general principles of criminal liability presuppose a moral and political philosophy. He contends that most of the major criminal theorists in Anglo-American legal history (Austin, Holmes, Stephen, Hall, Williams, and others) have supposed that criminal theory can be empirical, scientific, and objective and have emphasized such concepts as action, harm, and causation, which seem amenable to empirical analyses, at the expense of moral and political philosophy. The author argues that revising criminal theory to include moral and political philosophy will make a greater contribution to justice in the principles and practice of criminal law.