This chapter examines the concept of actus reus as a basic, essential component of criminal liability. It considers a range of recent scholarly interpretations of actus reus and the extent to which they are supported in the case law, with particular reference to the Canadian and U.S. jurisprudence. It discusses minimalist and maximalist interpretations of actus reus, the first of which conceives of actus reus on the basis of whatever the legislature has decided to criminalize and the second of which restricts criminal liability to positive acts. The chapter looks at approaches that interpret actus reus based on two factors: a person’s “control” over the prohibited outcome or conduct, proposed by Husak, and the person’s practical reasoning, proposed by Duff. The chapter argues that both minimalist and maximalist views of actus reus conflict with well-established features of the criminal law.
This chapter examines the role of causation in criminal law and especially as a central ingredient of criminal responsibility. It first discusses whether results should matter in the determination of legal and moral responsibility before considering causation within the contexts of criminal law and tort law. It highlights the ambivalence surrounding the use of the words “causation” and “cause” in many legal orders and goes on to explore what constitutes a cause and the philosophical debate about the causal relata—the objects connected by the causal relation. Some of the common problems in standard accounts of causation, particularly counterfactual dependency (sine qua non, but for), are also reviewed. The chapter concludes by summarizing a number of approaches to restrict factual causation, including those relating to proximity, the notion of “harm within the risk” or “harm within the scope of the rule violated,” “ordinary hazards,” intervening causes, and culpability.
This chapter analyses the pervasive impact of the Charter on the Canadian criminal justice system. Active judicial interpretation of Charter rights has put in place distinctive constitutional standards of substantive law, including those of fault, and struck down oppressive laws for arbitrariness and overbreadth. Also examined are new standards for police powers to stop, search, detain and interrogate, fair trial rights such as the duty of full Crown disclosure, and for assessing mandatory minimum sentences. This chapter describes and welcomes a robust exclusionary discretion for evidence obtained in violation of the Charter. It is suggested that the Canadian Charter standards are no panacea and are sometimes too weak but that they have often provided a welcome balance to the expedient lure of law-and-order politics.
This chapter examines the codification of criminal law by focusing on the theory and practice of codification in England and the United States. The aim of the chapter is to widen the focus from a discussion of what are claimed to be the immediate benefits of a project of codification to raise some broader issues about the meaning and functions of codification of the criminal law. It considers how codification might contribute to values such as liberty by analyzing its relationship with modernity and discusses the immediate benefits of codification. It also highlights the tension between the liberalism and authoritarianism at the heart of the modern codification project and concludes by assessing the function of a penal code.
Colonial Criminal Law and Other Modernities: European Criminal Law in the Nineteenth and Twentieth Centuries
Markus D. Dubber
This chapter reflects on various traditional approaches to the historical study of European criminal law in the nineteenth and twentieth centuries. It examines several ways of naming and framing the subject matter, along with ways of ‘covering’ it along a set of by now fairly well-established narrative paths that generally reflect a quietly reassuring Whiggishness. It then lays out an alternative, two-track, conception of ‘modern’ European criminal legal history. It does this by taking an upside-down—or outside-in—view of the subject, by focusing on an understudied, but fascinating, project of European criminal law: the invention, implementation, and evolution of colonial criminal law.
Luis E. Chiesa
This chapter discusses comparative criminal law and demonstrates how comparative analysis can elucidate both domestic and international aspects of criminal law. After explaining what it means to do comparative criminal law and how it differs from similar endeavors, such as compiling the criminal law doctrines of different jurisdictions, the chapter considers the usefulness of comparative analysis in terms of strengthening domestic criminal law doctrines and understanding international criminal law. It also outlines some obstacles to be overcome in order to engage in meaningful comparative analysis, such as language, legal, historical, and cultural barriers. It compares common law and civil law approaches to legal reasoning and presents two examples of doing comparative criminal law by comparing common law and civil law approaches to attempt liability and then exploring mens rea, with an emphasis on the differences between the continental mental state of dolus eventualis and the Anglo-American mental state of recklessness.
James G. Stewart
This chapter examines complicity within the framework of criminal law and theory and outlines recurrent normative problems as well as solutions. It considers structural questions that inform accomplice liability in different criminal systems, such as the mode of participation and whether complicity should be treated as an inchoate offense comparable to attempt or a separate crime. It looks at the unitary theory of perpetration and the conduct required to establish accomplice liability, including actions or omissions, practical assistance, or moral encouragement. It then evaluates the nature and extent of derivative liability, the dilemma presented by causation, and substantial and de minimis contributions by an accomplice. It describes the various static and dynamic mental elements that are often assigned to the concept of complicity and explains how a comparative approach can shed light on blind spots in various schools of thought about complicity, including whether it should be distinct from perpetration.
Contemporary criminal law is best understood as a species of constitutional reflection. This chapter begins by considering the way in which substantive criminal law has become a laboratory for the constitutional – a site for reflection on central constitutional themes, including sovereignty and state violence; the anthropology of the legal subject; the rule of proportionality; and the relationship between judgment, discretion, and mercy. It then explores how issues that have long troubled the criminal law have translated into a constitutional register, examining constitutional debates surrounding the limits of the criminal law, requirements for fault, the structure of criminal defences, and standards for punishment. Ultimately, the chapter identifies a challenging irony: that despite this shift in the imaginative relationship between criminal law and the larger legal structure, whereby criminal law has been tethered to questions of constitutional justice, much criminal justice is still left to be done in spite of the law.
This chapter examines changes in criminal law over the last decades, paying particular attention to corporate criminal liability (CCL). After outlining the main features of CCL with a focus on corporations, it traces the emergence and expansion of CCL in various countries such as England and the United States and the adaption of the concept of corporate criminal liability by other countries. It then looks at the opposition of some countries to CCL, including Germany, Italy, Greece, Bulgaria, and Latvia. The chapter also discusses issues of efficiency, fairness, and the transferability of criminal law (and its premises) onto collectives, along with the main differences between existing models of CCL. Finally, it considers the present and the future of criminal law based on the development of CCL, with emphasis on conflict rather than the offender and the domination of preventive aspects.
Economic globalization has facilitated transnational criminal and terrorist activity since the mid-nineteenth century, thus incentivizing closer international law enforcement cooperation. This chapter explores the history of that cooperation, the contours of which are shaped by the interaction of the institutions of sovereignty and the reality of power in the international system. It argues that international law enforcement cooperation to counter terrorism and transnational crime takes two independent, but interacting, forms: firstly, the use of existing international institutions to define behaviour as criminally deviant and to repress it, even against the will of some states; and, secondly, the formation of transgovernmental policing networks, and, more recently, collaborative multisectoral governance arrangements — both notionally apolitical, but inherently reflective of a shared understanding of criminally deviant behaviour. The interplay of these two approaches follows the contours defined by juridical sovereignty and power in the international system.