Liberal Criminal Theory: Essays for Andreas von Hirsch

by A P Simester (Editor), Antje du Bois-Pedain (Editor), Ulfrid Neumann (Editor)

Overview

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 focused. 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.

Product Details

ISBN-13:	9781509913879
Publisher:	Bloomsbury Academic
Publication date:	12/15/2016
Pages:	408
Product dimensions:	6.14(w) x 9.21(h) x 0.83(d)

About the Author

A P Simester is Professor of Law and Provost's Chair at the National University of Singapore, an Honorary Research Fellow at the Institute of Criminology, University of Cambridge, and Honorary Professor in Law at Uppsala University.
Antje du Bois-Pedain is a University Senior Lecturer at the Faculty of Law, University of Cambridge, and a Fellow of Magdalene College, Cambridge.
Ulfrid Neumann is Professor of Criminal Law, Criminal Procedure, Legal Theory and Sociology of Law at the Goethe-University in Frankfurt.

Table of Contents

List of Contributors xiii

Editors' Introduction xv

Part1 Punishment and Prevention

1 Punishment Paradigms and the Role of the Preventive State Andrew Ashworth 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 JR Edwards 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

Part 2 Punishment, Desert and Communication

5 After the Crime: Post-Offence Conduct and Penal Censure Julian V Roberts 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 Günther 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

Part 3 Rechtsgiiter, Harm and Offence in Cnniinalisation

9 'Rights of Others1 in Criminalisation Theory Tatjana Hörnle 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' (Rechtsgüterschutz): 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 RA Duff 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 Peršak 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 Defining 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

Part 4 Criminal Justice in a Liberal State

14 Can Punishment Be Just?* Bernd Schünemann 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 Andreas von Hirsch 361

Index 367

Editorial Reviews

"The novice is unlikely to recognize the level of sophistication this book contains...Liberal Criminal Theory is an outstanding collection of papers that pay tribute to a great and important scholar. Every single article is worth reading..." --Criminal Law and Criminal Justice Online

From the Publisher