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Liberal Criminal Theory: Essays for Andreas von Hirsch

Liberal Criminal Theory: Essays for Andreas von Hirsch

Author: A.P. Simester; Antje du Bois-Pedain; Ulfrid Neuman
Publisher: Hart Publishing
ISBN: 9781509913879

Published In: December 2016
Format: Paperback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only
Hardback Edition ISBN: 9781849465144

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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.

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 I

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