Details
- Presents an original theory of the nature of criminal law, anchored in liberal political theory
- Advances the understanding of apparent contradictions and paradoxes within the criminal law
- Offers a major reassessment of the nature and role of the harm principle in criminal law, of interest to liberal political philosophers as well as criminal law theorists
This book sets out a new understanding of the penal law of a liberal legal order. The prevalent view today is that the penal law is best understood from the standpoint of a moral theory concerning when it is fair to blame and censure an individual character for engaging in proscribed conduct. By contrast, this book argues that the penal law is best understood by a political and constitutional theory about when it is permissible for the state to restrain and confine a free agent. The book's thesis is that penal action by public officials is permissible force rather than wrongful violence only if it could be accepted by the agent as being consistent with its freedom. There are, however, different conceptions of freedom, and each informs a theoretical paradigm of penal justice generating distinctive constraints on state coercion. Although this plurality of paradigms creates an appearance of fragmentation and contradiction in the law, the author argues that the penal law forms a complex whole uniting the constraints on punishment flowing from each paradigm.
Introduction
1: Punishment
2: Culpable Mind
3: Culpable Action
4: Responsibility for Harm
5: Liability for Public Welfare Offences
6: Justification
7: Excuse
8: Detention After Acquittal
9: The Unity of the Penal Law
Conclusion
Bibliography
Index
Alan Brudner, Albert Abel Professor of Law, University of Toronto
Alan Brudner is Albert Abel Professor of Law and Professor of Political Science at the University of Toronto. He holds a law degree from the University of Toronto, where he also received bachelor's, master's and doctoral degrees in Political Science. He has been a Visiting Fellow at Oxford University and a Visiting Professor at the Hebrew University of Jerusalem and Tel Aviv University. He is the author of Constitutional Goods and The Unity of the Common Law: Studies in Hegelian Jurisprudence as well as numerous journal articles on a variety of topics in legal and political theory. He was the editor of the University of Toronto Law Journal from 2000 to 2007.
"Brudner's effort is mind-blowing. Old ideas are expressed in new frameworks; familiar distinctions are drawn in different ways; existing doctrines receive novel formulations; principles that long have been taken for granted are subjected to fresh challenges" - Douglas Husak, Rutgers University. Ethics 120.4
"...a remarkable contribution to liberal and penal theory offering a well-argued and compelling theory of "legal retributivism"...Brudner has done us all a great service in offering such an attractive theory of punishment that will warrant much discussion in the years to come." - Thom Brooks, New Criminal Law Review
"Alan Brudner has produced a rare and beautiful work of scholarship. He gives us nothing less than a comprehensive theory of the criminal law, with answers to almost all, if not all, the questions that commonly preoccupy its students. The scope of Brudner's study is breath-taking ...Hegel's work inspires Brudner's theory, but anyone can understand Brudner's theory without understanding Hegel, though I suspect that the more one appreciates Hegel, the better one can appreciate Brudner...Brudner's theory of the criminal law is an intellectual delight, in which I hope every student of the criminal law will allow themselves to indulge." - Stephen P. Garvey, Professor of Law & Associate Dean for Academic Affairs, Cornell Law School, University of Toronto Law Journal
