Cognition, Vol. 9, No. 1

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Lying or cheating is an evil but it need not be harmful. Secondly, and more importantly, the harm principle regulates achievement as well as endeavour. The law must actually prevent the harm that it is intended to prevent, and must, moreover, do so in a way that is proportionate to the harm actually prevented.

Herein lies the real power of the harm principle as a constraint on legislators. It is easy to point to a harm that one's pet legislation is designed to eradicate; it is a lot harder to show that it eradicates it. Unfortunately this powerful constraint is not immanent in the criminal law. It calls for independent defence. All that is immanent in the criminal law is the weaker constraint identified by Husak as the nontrivial harm of evil constraint, and this gives legislators nothing to lose sleep over. Husak seems to acknowledge this when he writes that he 'will place surprisingly little weight on this first internal constraint', even though it could be beefed up by further argument so as to 'have enormous potential to retard the growth of the criminal law' Yet overzealous legislators have, it seems to me, even less to fear from Husak's second constraint, the wrongdoing constraint, according to which '[c]riminal liability may not be imposed unless the defendant's conduct is in some sense wrongful' All crimes are legal wrongs and all legal wrongs are purported moral wrongs, i.

All that it takes to turn them into true moral wrongs is that the law in question is morally acceptable. It follows without further ado that the wrongdoing constraint is no constraint. The wrongdoing constraint cannot enter into a determination of whether the law in question is morally acceptable since the question of whether the constraint is satisfied depends on an independent assessment of whether the law in question is morally acceptable. Of course one could insist on a stronger wrongdoing constraint that would have real bite. One could insist that all crimes must already be wrongs quite apart from the law.

All crimes must be mala in se ; no mala prohibita are allowed. But this constraint would also need an independent defence. It is not immanent in the law.

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Besides, Husak rightly allows for there to be mala prohibita in the criminal law. Inasmuch as he limits the range of mala prohibita , he seems to rely on his third constraint, the desert constraint, to do so. The reasons for the prohibition of the malum prohibitum must also 'justify state impositions of hard treatment and stigma', i.


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With the buck passed thus to the desert constraint, the wrongdoing constraint seems to have no work of its own left to do. Unfortunately, however, the desert constraint meets a similar fate. According to this constraint, '[p]unishment is justified only when and to the extent that it is deserved' with the result that 'some real or imaginary criminal laws should be placed beyond the reach of the punitive sanction' And to put criminal laws beyond the reach of the punitive sanction is to decriminalize them Husak is right that this constraint, for what it's worth, is immanent in the criminal law.


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  • It is a presupposition of each criminal law that at least some of those who break that law deserve to be punished. But what is the constraint worth? Husak tries to show its importance by exposing as implausible a view known as 'legalistic retributivism' associated with J. Mabbott which reduces the importance of the constraint to zero by holding that punishment of a law-breaker is deserved simply on the ground of his or her law-breaking.

    This is implausible, observes Husak, precisely because it 'allows punishment whatever the criminal law happens to proscribe' But this answer to Mabbott does not show, as Husak hopes, that the desert constraint is a constraint on criminalization.

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    In fact it strongly suggests the opposite. It strongly suggests that a criminal law must be a justified one before it is appropriate to punish for its breach. This being so, the justification of the punishment depends on the justification of the criminal law for breach of which one is punished, not vice versa.

    Each criminal law still needs a justification independent of the desert constraint before the desert constraint can be applied. So the justification of a criminal law cannot depend on whether it satisfies the desert constraint.

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    How about the presumption against criminalization? This Husak bases on the thought that punishment infringes rights, and that 'the burden of proof in justifying the infringement of rights is generally placed on those who would potentially violate them' Here Husak invokes a well-known distinction, which I agree is important, between the infringement of rights justified and the violation of rights unjustified. Personally I doubt whether people who deserve punishment i. I think it more likely that there exists a right not to be punished, and hence a right that is infringed by punishment, only in the much rarer case of those who are justifiably punished even though they do not deserve it a case also discussed by Husak, But be that as it may, the existence of such a right is not presupposed in the criminal law.

    And even if it were it would do nothing to support the existence of any presumption against criminalization. Whether criminalization is justified depends on what reasons there are, and what reasons are acted on, not on what reasons are given or presented. A legal system that does not prohibit murder or rape where prohibiting it would help to prevent it cannot shield itself from legitimate public criticism by saying that its critics are the ones who have to make the case for such prohibitions.

    Of course it is true, as Husak says, that legislators have a duty to explain why they want to criminalize what they want to criminalize.

    The Moral Limits of the Criminal Law: Volume 1: Harm to Others

    But this is because they are legislators, not because they are in favour of criminalization. Civil Preventive Orders. Preventive Detention of the Dangerous. Counter-Terrorism Laws and Security Measures. Public Health Law, Prevention and Liberty. Prevention and Immigration Laws. Conclusions: the Preventive State and its Proper Limits. Special Offers. Bribery and Corruption is a detailed and expansive guide to bribery and corruption law in Hong Kong Add to Cart. Add to Wish List. Add to Compare. Private Equity in Hong Kong and China aims to provide an overview of private equity investments by g..

    Recently View. Best Sellers. Hong Kong Company Law 14th Translations for this category have been changing. As this legal concept is virtually nonexistent outside the jurisdictions of Austria, Belgium 6 , Switzerland, and Germany, it will need some explanation. Although these sanctions require a conviction by a criminal court for a criminal offence, they are, in theory at least, thought to be independent of any guilt. The purpose of a preventive measure is pure prevention of severe future offences — and nothing else. Both are for an indefinite term in a secure institution but may be suspended by the court.

    Preventive detention ss.

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    In its most important traditional form, punishment and preventive detention are both parts of a sentencing decision at the end of a trial. The complexity of the legal provisions has been increased, however, by several changes since Moreover, new subtypes were introduced. The recently enacted model of continued detention — a notion borrowed from Australia 8 — postpones the decision to the end of a prison sentence.

    This scheme applies to violent or sexual offenders if they are considered dangerous at the end of a longer prison sentence and certain legal conditions are met. Continued detention was first introduced as a measure of administrative law in five federal states since Only after a Federal Constitutional Court decision that this was indeed a matter of federal criminal law 10 , the scheme was enacted as part of the Criminal Code in The association of the notion of dangerousness with mentally disordered offenders is much more common.

    In Germany, the placement in a psychiatric hospital for criminal offences s. This requires a mental disorder but not a complete lack of criminal responsibility. In the less frequent cases of a state of only diminished criminal responsibility, this sanction will typically be combined with a prison sentence — although most of these offenders will not go to prison but only to a psychiatric institution.

    Another group of offenders cited by the law is those with addiction, which refers to alcohol as well as illegal drugs. If these persons are considered dangerous, a custodial addiction treatment order is possible s. Moreover, both mental hospital and addiction treatment orders may be suspended from the beginning.

    Some non-custodial measures also rely on the dangerousness concept but are left out here. In the long run, the commitment of persons with mental disorders to mental health institutions is most important.

    The Moral Limits of the Criminal Law: Volume 1: Harm to Others : Joel Feinberg :

    As a recent European Court of Human Rights case shows, even confinements of non-consenting patients to a clinic for medical treatment not authorised by a court order have occurred, and they raise serious human rights problems This account will rely on official statistics for the most parts, while the results of criminological research can only be mentioned for some aspects.

    Statistical data on criminal justice and sentencing in Germany have been collected from the last decades of the nineteenth century. For the longitudinal analyses presented here, some sanctions have to be selected 13 and some limitations to be observed. On the other hand, data on confinement in psychiatric hospitals are less easily to be found especially as far as non-criminal forms of detention are concerned. It seems impossible to establish a clear hierarchy between these sanctions because they all rely on the dangerousness concept in a certain way and they all aim at long-term detention.

    Of course, the validity of longitudinal studies based on official statistics depends heavily on the quality of the data compiled by statistical authorities For the version of conviction statistics published every year, the German reunification of did not have much impact in general due to some legal problems. Even recently, conviction statistics have not been published for all the federal states in the East of the country Commitments to psychiatric institutions are covered by conviction statistics as far as these measures are taken by a criminal court. Non-criminal commitments, however, may only be found in statistics of the civil courts, which have existed since For this period of history, interpretation has to take into account the frequent change of political systems, the two World Wars, and the use the Nazi authorities made of the law They reflect those sanctions that are executed within the prison system quite well — that is, in the present context, life sentences and preventive detention.

    For psychiatric inpatients in general, official statistical data tend to be even less complete When the death penalty still existed, the function of the life sentence was different. Before , capital punishment was the most severe punishment according to German criminal law, the life sentence following in the second place. As Nikolaus Wachsmann points out, in and alone, more people were sentenced to death than in the entire year period between and The figures shown here include those death sentences that were covered by official criminal statistics until But they did not change the relative importance of life sentences compared to capital punishment very much.

    In every year for which statistical data were collected, the frequency of convictions for life was considerably lower than that of death sentences. This is true for the Nazi regime — , for the Weimar Republic — , and for Imperial Germany — In several years of the Kaiserreich , , , there were not more than just two life sentences that were recorded in conviction statistics, and the figures never exceeded 18 for Although the figures were higher during the crisis period in the early s going up to 27 convictions in , there was another slump until It only came in the second position.

    Until the late s, capital punishment was the standard sentence for murder and very rarely applied for some other crimes, and life sentences were typically imposed on offenders convicted for manslaughter. In some cases, life sentences were imposed for rape or arson resulting in death. When the Nazi regime intensified legal terror, many new offences were introduced to allow capital punishment for, e.