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Liberal Criminal Theory: Essays for Andreas von Hirsch

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

ISBN13: 9781849465144

Published: August 2014

Publisher: Hart Publishing

Country of Publication: UK

Format: Hardback

Price: £85.00

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Paperback edition , ISBN13 9781509913879

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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

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