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Core Concepts in Criminal Law and Criminal Justice: Volume 1: Volume I [Hardback]

Edited by (Georg-August-Universität, Göttingen, Germany), Edited by , Edited by (University of Stirling), Edited by (Georg-August-Universität, Göttingen, Germany), Edited by (University of Oxford)
  • Formāts: Hardback, 504 pages, height x width x depth: 235x156x31 mm, weight: 830 g, Worked examples or Exercises; 1 Tables, black and white; 1 Line drawings, black and white
  • Izdošanas datums: 16-Jan-2020
  • Izdevniecība: Cambridge University Press
  • ISBN-10: 1108483399
  • ISBN-13: 9781108483391
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  • Formāts: Hardback, 504 pages, height x width x depth: 235x156x31 mm, weight: 830 g, Worked examples or Exercises; 1 Tables, black and white; 1 Line drawings, black and white
  • Izdošanas datums: 16-Jan-2020
  • Izdevniecība: Cambridge University Press
  • ISBN-10: 1108483399
  • ISBN-13: 9781108483391
Attempts at trans-jurisdictional debate and agreement are often beset by mutual misunderstanding. Professionals and academics engaged in comparative criminal law sometimes use the same terms with different meanings or different terms which mean the same thing. Although English is the new lingua franca in international and comparative criminal law, there are many ambiguities and uncertainties with regard to foundational criminal law and criminal justice concepts. However, there exists greater similarities among diverse systems of criminal law and justice than is commonly realised. This book explores the foundational principles and concepts that underpin the different domestic systems. It focuses on the Germanic and several principal Anglo-American jurisdictions, which are employed as examples of the wider common law-civil law divide.

Scholars of comparative criminal law often do not understand each other, using the same terms with different meanings or vice versa. In this collection, authors from the Germanic and the Anglo-American traditions collaborate to compare, and explore the connections and similarities between the basic concepts and structures of their systems.

Recenzijas

'Core Concepts in Criminal Law and Criminal Justice brings together leading scholars from Anglo-American and Germanic jurisdictions in the attempt to build a 'common grammar' of criminal law and criminal justice. The insightful collection will be an invaluable point of reference for any researcher in the field.' Gleb Bogush, School of General and Interdisciplinary Legal Studies, Higher School of Economics, Russia 'Core Concepts in Criminal Law and Criminal Justice is one of the most serious and promising attempts to build a trans-jurisdictional dialogue between Anglo-American and continental European criminal law scholars. Aimed at exploring the basis for a common grammar in Western criminal law, the book uncovers interesting commonalities and diversities between these legal traditions in their legal frameworks and criminal law theories. To sum up, a must-read book for those who really want to delve into comparative analysis of criminal law.' Ezequiel Malarino, Universitą degli Studi di Macerata, Italy 'If the existence of a global society is defined by the existence of common rules with hardly any local modulations, this book presents the reader with his birth certificate. In fact, the book describes how, in practice, the interpretation and application of common rules operates to face global problems in that part of 21st-century society that is still called the West, beyond the local regulations in which it is supposed to be the most parochial of all areas of law: criminal law. What is the common foundation of punishment for omissions? Who is responsible for crimes, why and to what extent? What is consent as a defence? What is terrorism and how is it punished? Is there a maximum limit to the penalty to be imposed for a crime? What penalty should be imposed on repeat offenders? How are penalties negotiated? What are the minimum rules of due process and what should be done about illicit evidence? All these questions have answers in this book in shared rules, with local modulations more or less important, but that do not cease to be that: hardly spaces in the common rules for local adaptation. In this way, its editors (Kai Ambos, Antony Duff, Julian Roberts and Thomas Weigend) demonstrate that, beyond Brexit and high-flown statements, there will continue to exist a society with shared rules on both sides of the English Channel.' Jean Pierre Matus Acuńa, Universidad de Chile 'This is an ambitious opening foray in an exciting project, which is both comparative and conceptual. Rather than simply comparing legal practices, each chapter uses comparative inquiry to excavate underlying theoretical and philosophical assumptions and perspectives. This project offers new ideas and new frameworks that can enliven thinking within different communities of criminal law theory.' Darryl Robinson, Queen's University, Ontario 'This is a project that is wonderfully conceived. International criminal law has, as the editors say, in spite of English increasingly become the lingua franca of international criminal law, often beset by linguistic misunderstandings, where concepts that sound the same are, in fact 'false friends'. This work, therefore in seeking to foster a trans-linguistic and analytic approach to core concepts in international criminal justice is one that can be warmly applauded. The editorial team behind it reads very much as a 'who's who' of international criminal law, and the outstanding quality of the chapters it contains is testament to their dedication to such an important project.' Robert Cryer, University of Birmingham 'The book Core Concepts in Criminal Law and Criminal Justice: Anglo-German Dialogues provides us with an opportunity to look at the boundaries of criminal liability from comparative perspectives, and to evaluate the considerations that justify the extension of criminal liability ' Miriam Gur-Arye, Israel Law Review

Papildus informācija

A comparative and collaborative study of the foundational principles and concepts that underpin different domestic systems of criminal law.
Preface xiii
List of Abbreviations xiv
List of Contributors xvii
Part I Introduction 1(14)
1 Introductory Remarks
3(12)
Kai Ambos
Antony Duff
Julian Roberts
Thomas Weigend
I The Need for a Comparative Conceptual Analysis
3(2)
II The Aims and Scope of the Project
5(1)
III Volume I
6(9)
Part II Criminal Law 15(196)
2 Omissions
17(37)
Kai Ambos
I The Basic Distinction between Act and Omission: Towards a Normative Approach
17(3)
II Two Forms of Omission: Pure Omission and Commission by Omission
20(7)
III Commission par Omission: The Duty to Act and Its Foundation
27(12)
1 Guarantor Duties under Civil Law
28(2)
2 Special Duties under Common Law
30(4)
3 The Civil and Common Law Approaches Combined
34(5)
IV Failure to Rescue Liability: The Underlying Normative Assumptions
39(8)
1 Towards a Convergence of the Common and Civil Law Approach
39(4)
2 From an Ethical Duty to a Legal Obligation: Solidarity and Conditions of Effective Liberty
43(2)
3 The Responsibility of the Concrete Assister
45(2)
Bibliography
47(7)
3 Preparatory Offences
54(40)
Stefanie Bock
Findlay Stark
I 'Preparatory Offences': Definition and Importance
54(4)
II Some Examples of Preparatory Offences
58(6)
III Why Criminalise Preparatory Offences?
64(1)
IV The Legitimate Boundaries of Preparatory Offences
65(19)
1 Which Completed Offences?
65(2)
2 Which Risks?
67(4)
3 Preparatory Offences and Imputation
71(4)
4 Objectively Non-Dangerous Conduct
75(3)
5 Culpability and the 'Remoteness Principle'
78(3)
6 Withdrawal
81(3)
V How Should Preparatory Offences Be Punished?
84(3)
VI Conclusion
87(1)
Bibliography
88(6)
4 Participation in Crime
94(41)
Antje Du Bois-Pedain
I Introduction
94(9)
1 Terminology: Primary and Secondary Parties; Unitary and Differentiated Systems
96(4)
2 Unitary or Differentiated Systems: A Matter of Choice or Structural Necessity?
100(3)
II Differentiated Liability Systems Compared
103(19)
1 England and Wales
104(8)
2 Germany
112(5)
3 Particular Issues and Their Resolution
117(1)
a Can Principal and Secondary Party Be Liable for Different Offences?
117(1)
b Escalating Violence Cases
119(1)
c Recklessness/Negligence and Secondary Liability
120(2)
III Developing a Sufficiently Differentiated Liability Model
122(7)
1 The Mediated Action Paradigm ('Acting through Another')
123(4)
2 The Concerted Action Paradigm ('Acting with Another')
127(1)
3 The Parallel Actions Paradigm ('Acting alongside Another')
128(1)
IV Conclusion
129(1)
Bibliography
130(5)
5 Consent in the Law Relating to Sexual Offences
135(37)
Tom O'Malley
Elisa Hoven
I Introduction
135(1)
II The Role of Consent
136(5)
III The Limits of Consent
141(8)
IV Lack of Capacity to Consent
149(2)
V Factors Vitiating Consent
151(10)
1 Statutory and Common Law Definitions of Consent
152(3)
2 Fraud and Deception
155(5)
3 Strong Inducements and Non-Violent Threats
160(1)
VI Impact of Intoxication
161(4)
VII Temporal Aspects of Consent
165(2)
VIII Conclusion
167(1)
Bibliography
168(4)
6 Terrorism Offences
172(39)
Andrew Cornford
Anneke Petzsche
I Introduction
172(3)
II Preparation of Terrorism
175(9)
III Encouraging Terrorism
184(7)
IV Offences Related to Terrorist Organisations
191(8)
V Terrorism-Related Possession Offences
199(5)
VI Conclusion
204(2)
Bibliography
206(5)
Part III Criminal Justice and Procedure 211(248)
7 Proportionality of Punishment in Common Law Jurisdictions and in Germany
213(48)
Richard S. Erase
Carsten Momsen
Tom O'Malley
Sarah Lisa Washington
I Introduction
213(2)
II Retributive Proportionality Principles
215(6)
1 Constituent Elements of Common Law Retributive Theory
215(1)
2 Relative (Ordinal) versus Absolute (Cardinal) Retributive Proportionality Principles
215(1)
3 Determining (Positive) versus Limiting (Negative) Retributive Principles
216(1)
4 The Elements of Retribution and Retributive Proportionality in German Sentencing
217(1)
a Kant
218(1)
b Hegel
219(1)
c Fichte
219(2)
III Consequentialist Proportionality Principles in Common Law Systems and Germany
221(15)
1 Ends-Benefits (Cost-Benefit) Proportionality Principles
222(1)
2 Alternative-Means (Necessity) Proportionality Principles
222(1)
3 Examples of Penalties Violating Ends-Benefits and/or Alternative-Means Principles
223(1)
4 Consequentialist Elements in German Sentencing Approaches
224(1)
a Von Liszt (Special Prevention and the Purpose of Security)
224(1)
i Consequentialist Elements
225(1)
ii Lack of Limitation
225(1)
b Feuerbach (Consequentialist General Prevention)
226(1)
c The Approaches to Finding Adequate Sentences in Current German Jurisdiction
227(1)
i Historic Development of the German Concept of Punishment
227(1)
ii Principle of Guilt
228(1)
iii 'Margin Theory' - Spielraumtheorie - by the German Federal Criminal Court
229(1)
iv Theory of 'Just Deserts' - Punktstrafetheorie
229(1)
v Theory of 'Two Levels' - Stellenwerttheorie
230(1)
d Ultima Ratio (Last Resort)
231(1)
e Constitutional Proportionality
232(1)
f Summary
235(1)
IV How Do Retributive and Consequentialist Proportionality Principles Differ?
236(3)
1 Ends-Benefits Proportionality Compared to Retributive Proportionality
236(1)
2 The Alternative-Means Principle - Does It Have a Retributive Counterpart?
237(2)
V How Have Common Law Systems Incorporated Proportionality Principles?
239(6)
VI How Has the German System Incorporated Proportionality Principles? A Quest for Broader Theory of Proportionality in German Legal Theory?
245(3)
1 Retributive Proportionality/'Just Deserts'
245(1)
2 Offence-Related Proportionality (von Hirsch/Hornle)
246(1)
3 Consequentialist Proportionality
247(1)
VII Can All Proportionality Principles Be Recognised in a Single Punishment Model?
248(3)
1 Retributivism and Consequentialism
248(1)
2 Adding German Limiting Principles
249(2)
VIII Possible Challenges on the Way to a Coherent Model of Proportionality in Sentencing
251(3)
1 The Common Law Perspective
251(1)
2 The German Perspective
252(1)
a Losing Legitimacy Due to a Lack of 'Special Prevention'?
252(1)
b Roll-Back into the Offender-Focused Perspective: Losing the Limits
253(1)
c Focusing on the Public - the Offender as an Instrument of Excessive General Prevention
253(1)
d Losing Legitimacy Due to a Lack of 'General Prevention'?
254(1)
IX Conclusion
254(2)
Bibliography
256(5)
8 Criminal History Enhancements at Sentencing
261(43)
Julian Roberts
Stefan Harrendorf
I Introduction
261(4)
II Prior Record Enhancements and Sentencing Theories
265(16)
1 Preventive Sentencing Theories
266(1)
a Types of Preventive Theories
266(1)
b Special Prevention
266(1)
c General Prevention
272(4)
2 Retributive Perspectives
276(5)
III The Need for Guidance: The Complexity of a Criminal Record
281(1)
IV Representative Statutory and Guidelines Approaches to Structuring Discretion Regarding Previous Convictions
282(4)
1 Presumptive Sentencing Guidelines
282(2)
2 Statutory Provisions Relating to Prior Convictions
284(2)
3 Judicially Derived Guidance
286(1)
V Three Key Issues
286(6)
1 Age of Prior Offences: The Long-Playing Criminal Record
287(4)
2 The Seriousness of Prior Convictions
291(1)
3 The Similarity of Prior Convictions
292(1)
VI Drawing Conclusions
292(4)
Bibliography
296(8)
9 Due Process
304(39)
Lucia Zedner
Carl-Friedrich Stuckenberg
I Introduction
304(1)
II Due Process in England and Wales
305(20)
1 Due Process and the Citizen-State Relationship
305(3)
2 The Historical Development of Due Process
308(1)
3 Due Process Values, Principles and Rights
309(8)
4 Theorising Due Process
317(1)
a 'Procedural Justice' and the Public Legitimation of State Power
317(1)
b Substantive Due Process
319(2)
5 Evasions and Erosions of Due Process
321(3)
6 Conclusion
324(1)
III 'Due Process' in Germany
325(11)
1 Historical and Conceptual Background
325(1)
a Schutzende Formen
326(1)
b Justizformigkeit and the Nineteenth-Century Rechtsstaat
328(1)
c Rechtsstaat as a Constitutional Principle and its Procedural Implications
330(2)
2 Core Principles and Rules
332(1)
a The Constitutional Duty to Prosecute and Punish
333(1)
b ...in a Constitutional Manner
333(1)
c A Tentative Inventory
334(2)
Bibliography
336(7)
10 The Role of the Prosecutor
343(46)
Alexander Heinze
Shannon Fyfe
I Introduction
343(1)
II The Role of the Prosecutor: Ethical Framework
344(9)
1 Justice and Fairness
345(3)
2 Prosecutorial Ethics
348(3)
3 Prosecutorial Misconduct
351(2)
III The Role of the Prosecutor: Normative Framework
353(23)
1 The Conceptualisation of the Normative Framework Beyond the Adversarial/Inquisitorial Divide
353(2)
2 Institutional Comparisons
355(1)
a The Prosecutor in the United States from an Institutional Perspective
355(1)
b The Prosecutor in England and Wales from an Institutional Perspective
359(1)
c The Prosecutor in Germany from an Institutional Perspective and Comparative Remarks
363(4)
3 Prosecutorial Decision-Making
367(1)
a Official Decision-Making
367(1)
b Opportunity Principle vs. Legality Principle
368(1)
c Abbreviated Criminal Proceedings and the Paramount Role of the Prosecutor
372(4)
IV Conclusion
376(3)
Bibliography
379(10)
11 Negotiated Case Dispositions in Germany, England and the United States
389(39)
Jenia I. Turner
Thomas Weigend
I Introduction
389(1)
II Scope and Regulation of Bargaining Procedures in the United States, England and Germany
390(18)
1 Adversarial Influences on Bargaining: United States and England
391(1)
a Bargaining in the United States
394(1)
b Bargaining in England and Wales
396(4)
2 Inquisitorial Influences on Bargaining: Germany
400(1)
a Principles Limiting Bargaining
400(1)
b Instances of Bargaining
402(1)
c Sentence Bargaining at the Trial Stage
403(4)
3 The European Court of Human Rights and Bargaining
407(1)
III Evaluating Bargaining Procedures
408(8)
IV Regulating Bargaining and Alternatives to Bargaining
416(5)
V Conclusion
421(1)
Bibliography
422(6)
12 Exclusion or Non-Use of Illegally Gathered Evidence in the Criminal Process: Focus on Common Law and German Approaches
428(31)
Stephen C. Thaman
Dominik Brodowski
I Introduction
428(1)
II The Rule or the Exception? On the Use of Evidence in the Criminal Trial
429(9)
1 Does the Inclusion/Use or the Exclusion/Non-Use of Evidence Require Justification?
429(1)
2 Exclusion of Evidence as a Limitation on Law Enforcement and the Search for the Truth
430(2)
3 Evolution of Exclusionary Rules in the Common Law
432(2)
4 Systematisation of Exclusionary Rules
434(1)
a Obtaining or Using Evidence
434(1)
b Long-Term or Limited Effects
436(1)
c Written or Unwritten Rules
436(1)
d Balancing Test or Strict Exclusion
437(1)
5 Conclusion
437(1)
III Balancing of Factors in Deciding on Admissibility or Exclusion of Evidence
438(19)
1 Balancing Tests Relating to the Exclusion of Evidence: The Common Law Perspective
438(1)
a Preliminary Remarks
438(1)
b Balancing under a 'Fair Trial' Model
439(1)
c Was the Violation of Constitutional Magnitude?
441(1)
d Was the Violation Serious or Forgivable? - On 'Policing the Police'
442(1)
e Balancing the Quality or Importance of the Evidence
445(1)
f The Gravity of the Crime Which Is Being Prosecuted
446(1)
g Preserving the Integrity of the Courts
446(1)
h The Public Impact of the Admissibility Decision
447(1)
2 Balancing Tests Relating to the Non-Use of Evidence: The German Perspective
448(1)
a Introduction
448(1)
b Justifying the Inclusion of Evidence
449(1)
c Justifying the Non-Use of Evidence
450(1)
d Relevant Factors
451(1)
e Obligation to Object or Requirement of Consent?
453(1)
3 (Dis-)Similarities and Lessons to Be Learned
454(3)
IV Towards a Moral and Legal High Ground in Criminal Justice
457(2)
Bibliography 459(4)
Index 463
Kai Ambos is the holder of the Chair of Criminal Law, Criminal Procedure, Comparative Law and International Criminal Law at the Georg-August-University Göttingen, Germany. He is also Head of the Department of Foreign and International Criminal Law, Institute of Criminal Law and Justice at Georg-August-Universität, Göttingen, Germany. Anthony Duff is a Professor Emeritus at the University of Stirling, and an Honorary Professor in the Edinburgh Law School. He is a Fellow of the British Academy and of the Royal Society of Edinburgh, and holds an honorary doctorate from Universitetet i Oslo. He was a founding co-editor of the journal Criminal Law and Philosophy. Julian Roberts is currently a member of the Sentencing Council of England and Wales, Associate Editor of the European Journal of Criminology and Visiting Research Professor at the Faculty of Law, University of Minnesota. He is is co-Director of the Criminal History Project located in the Robina Institute, Faculty of Law, University of Minnesota. Thomas Weigend is a Professor Emeritus of International, Comparative and German Criminal Law at the University of Cologne. He was a visiting professor at the University of Chicago, the University of Tokyo, New York University, Peking University, Universitį di Bologna, and other universities. Alexander Heinze is an Assistant Professor of law at Georg-August-Universität School of Law, Göttingen, Germany. His research and publications (in English and German) deal with various aspects of comparative law, media law, international criminal procedure, legal theory, philosophy and sociology of law.