Liberal criminal theory : essays for Andreas von Hirsch / edited by A. P. Simester, Antje du Bois-Pedain and Ulfrid Neumann ; with translations by Antje du Bois-Pedain.
2014
K5103 .L53 2014 (Map It)
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Title
Liberal criminal theory : essays for Andreas von Hirsch / edited by A. P. Simester, Antje du Bois-Pedain and Ulfrid Neumann ; with translations by Antje du Bois-Pedain.
Published
Oxford, United Kingdom : Hart Publishing, 2014.
Call Number
K5103 .L53 2014
ISBN
9781849465144
1849465142
1849465142
Description
xxix, 375 pages ; 24 cm
System Control No.
(OCoLC)877851887
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Table of Contents
List of Contributors
xiii
Editors' Introduction
xv
pt. 1
Punishment and Prevention
1.
Punishment Paradigms and the Role of the Preventive State / Lucia Zedner
3
I.
The Role of Prudential Disincentives
5
II.
The Scope of the State's Authority to Censure
7
III.
The State's Preventive Obligation
9
IV.
Developing the Preventive Obligation
14
V.
Conclusion
21
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?
23
II.
The Shortcomings of Traditional `Absolute' and `Relative' Theories of Punishment
25
III.
Principled Limits on Punishment, Guilt and Censure
32
IV.
Why Must the Perpetrator Allow Himself to be Roped in for the Achievement of the State's Preventive Aims?
33
V.
On the Expressive Function of Punishment
39
VI.
Conclusion
41
3.
Prevention with a Moral Voice / AP Simester
43
I.
Reconciling Desert and Deterrence
45
II.
Respecting Persons: Hegel and the Moral Voice
50
III.
Not Treating People as Means
59
IV.
Conclusion
64
4.
The `Deserved' Punishment* / Ulfrid Neumann
67
I.
`Effective' versus `Deserved' Punishment: a Hypothetical Scenario
68
II.
The Deserved Punishment: an Essential Component of `Absolute' (Deontological) Theories of Punishment
70
III.
The Deserved Punishment in Complex (`Unified') Theories of Punishment
72
IV.
The Culpability Principle: Ways towards its Recognition within a Theory of Punishment
73
V.
The Culpability Principle as an Integral Component of the Institution of Punishment
77
VI.
Punishment as Reaction and as Retribution
79
pt. 2
Punishment, Desert and Communication
5.
After the Crime: Post-Offence Conduct and Penal Censure / Hannah Maslen
87
I.
Introduction
88
II.
Defining Post-Offence-related Conduct
93
III.
Justifying the Mitigating Role of Commendable POC: An Offence-seriousness Approach
96
IV.
A More Expansive Account of the Normative Value of POC: Censure and Broader Retributive Values
103
V.
Some External Objections to POC as a Sentencing Factor
107
VI.
Conclusions
108
6.
Does Punishment Honour the Offender?* / Kurt Seelmann
111
I.
Overview
111
II.
Reprobation and Treatment as a `Moral Agent', ie as a Participant in Moral Discourse
112
III.
Punishment as Honouring the Offender in German Idealist Philosophy
113
IV.
What are the Differences between Strawson and the German Idealists with respect to the Function of Penal Censure?
115
V.
Imputation and the Person prior to Idealism: Attribution of Responsibility as a way of Taking Identity Seriously
117
VI.
Criticising this Tradition with Assistance from Hegel? (The Case of Forgiveness)
119
7.
Criminal Law, Crime and Punishment as Communication / Klaus Gunther
123
I.
Punishment: From Welfare Instrumentalism to Moral Expressivism
123
II.
The Communicative Turn
124
III.
Punishment as Communication
126
IV.
What does the Crime Say?
127
V.
What does the Criminal Law Say?
131
VI.
Why Hard Treatment?
133
VII.
Communication as an Action
135
VIII.
Again: Punishment as Communication
138
8.
Can Deserts Be Just in an Unjust World? / Michael Tonry
141
I.
Recognition of the `Unjust World' Problem
144
II.
Deep Disadvantage and Criminal Behaviour
147
III.
Deep Disadvantage as an Excuse or Mitigation
152
IV.
Social Adversity in Mitigation
156
V.
A Celebration
162
pt. 3
Rechtsguter, Harm and Offence in Criminalisation
9.
`Rights of Others' in Criminalisation Theory / Tatjana Hornle
169
I.
Strengths and Weaknesses of the Harm Principle
170
II.
Legal Moralism as the Only Alternative?
176
III.
The Tasks of Law
178
IV.
The Concept of `Rights'
180
V.
Legal Rights Claims versus Moral Rights
183
VI.
A Final Remark
185
10.
The Harm Principle and the Protection of `Legal Goods' (Rechtsguterschutz): a German Perspective* / Winfried Hassemer
187
I.
Dedication
187
II.
Harm Orientations through the Doctrine of Legal Goods and the Harm Principle
190
III.
Aims of the Harm-Orientation Doctrines
192
IV.
Limits
203
11.
`Remote Harms' and the Two Harm Principles / SE Marshall
205
I.
The Two Harm Principles
205
II.
Remote Harms and the Harmful Conduct Principle
207
III.
The Harm Prevention Principle and Regulatory Offences
214
IV.
Why Should We Obey?
222
12.
Using `Quality of Life' to Legitimate Criminal Law Intervention: Gauging Gravity, Defining Disorder / Nina Persak
225
I.
Assessing Harm
226
II.
Developing a Quality of Life Conception of Harm
231
III.
Application of the Model in Different Cultural Settings
239
IV.
Quality of Life in Denning and Regulating Disorder? Distinction from Security Discourses
240
V.
Concluding Thoughts
244
13.
Criminal Liability for Offensive Behaviour in Public Spaces* / Wolfgang Wohlers
247
I.
Searching for Standards of Legitimate Criminal Legislation
253
II.
Concluding Remarks
264
pt. 4
Criminal Justice in a Liberal State
14.
Can Punishment Be Just?* / Bernd Schunemann
269
I.
The Three Levels of Penal Justice
269
II.
A Penal Theory fit for Contemporary European Culture
270
III.
Just Punishment Requires a Just Demarcation of Criminal Conduct
275
IV.
The Requirements of Penal Justice Regarding the Structure of the Criminal Trial
279
V.
Concluding Remarks
282
15.
Punishment and the Ends of Policing / John Kleinig
283
I.
Is Punishment Ever a Legitimate Police Function?
283
II.
The Criminal Justice System
285
III.
The Police Role (or the Ends of Policing)
287
IV.
Police and Punishment
295
V.
Conclusion
302
16.
The Place of Criminal Law Theory in the Constitutional State / Antje du Bois-Pedain
305
I.
Criminal Law Theory in German Constitutional Jurisprudence
310
II.
Shaping the Interface between Constitutional Law and Penal Theory through a Constitutional `Right not to be Punished'? The Limited Potential of Constitutional Incorporation
314
III.
What Penal Theory has to Offer Law and Practice in a Constitutional State
320
IV.
Concluding Remarks
325
17.
Criminal Law Theory and the Limits of Liberalism / Paul Roberts
327
I.
Questioning the Liberal Consensus in Contemporary Criminal Law Theory
327
II.
Liberal Political Morality, in Miniature
330
III.
Liberal Criminal Law Theory for Liberals
337
IV.
Two Theoretical Limitations: Incompleteness and Indeterminacy
344
V.
From Liberal Criminal Law Theory to Cosmopolitan Criminal Jurisprudence
358
List of Publications by Andreas von Hirsch
361
Index
367