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.
Sean D. Murphy
This chapter focuses on the International Criminal Court’s jurisdiction over the crime of aggression. The discussion provides background to the crime of aggression and the resulting criminal accountability of the guilty party, paying particular attention to UN General Assembly’s adoption in 1974 of a resolution addressing aggression by states rather than the crimes of individuals and is designed as guidance for the Security Council when considering whether an act is one of ‘aggression’. The chapter examines the amendments to the ICC Rome Statute defining ‘act of aggression’ and ‘crime of aggression’ adopted at the ICC Review Conference in Kampala, Uganda, in 2010. It also discusses the uncertainties and ambiguities in the process for activating ICC jurisdiction over the crime of aggression. It considers the possible institutional effects of such jurisdiction on the UN Security Council and the ICC itself, as well as its long-term consequences for the jus ad bellum.
Crime, Security, and Information Communication Technologies: The Changing Cybersecurity Threat Landscape and its Implications for Regulation and Policing
David S. Wall
Networked digital technologies have transformed crime to a point that ‘cybercrime’ is here to stay. In the future, society will be forced to respond to a broad variety of networked crimes that will increase both the complexity of crime investigation and prevention, whilst also deepening the regulative challenges. As cybercrime has become an inescapable feature of the Internet landscape, constructive management and system development to mitigate cybercrime threats and harms are imperatives. This chapter explores the changing cybersecurity threat landscape and its implications for regulation and policing. It considers how networked and digital technologies have affected society and crime; it identifies how the cybersecurity threat and crime landscape have changed and considers how digital technologies affect our ability to regulate them. It also suggests how we might understand cybercrime before outlining both the technological developments that will drive future cybercrime and also the consequences of failing to respond to those changes.
Ari Z. Bryen
This chapter addresses two “crimes” against the individual: violation of his public face (iniuria), and violation of his household (stuprum and adulterium). More than mere prohibited offences, these two types of harm came, during the crises of sovereignty of the late Republic and early Principate, to be potent loci for thinking about the ideal citizen, his political relationships, and the nature of the Roman state. Though these categories were linked together through doctrinal law, their impact is evident in a variety of texts from this period, and so demonstrate the ways in which “law” and “society” were deeply linked at the levels of the fundamental cognitive structures that enabled the Romans to make sense of their lived and historical experience.
During most of the Republic, the Romans viewed only perduellio as a threat to state security. Other threats were dealt with through institutionalised mechanisms of stability in Rome’s political structure, above all through the public lawmaking assemblies. Only when the political system wavered in the late Republic did the Romans criminalise “diminishing the superiority of the Roman people” maiestas populi Romani minuta (maiestas) as a crime against the state. Inherent in maiestas is the authority of the Roman people to negotiate consensus through the public lawmaking process in which the people voiced their commands. During the Empire, the emperor embodied the superiority of the Roman people and through him, as the chief lawmaker of Rome, were channelled the commands of the people. The scope of maiestas was altered to adapt to changing ideas of the state, but the idea that maiestas constituted the chief crime against the state persisted.
David J. Scheffer
This chapter considers the historical developments leading to the establishment of international criminal tribunals and why there exist unique provisions and capabilities, as well as some similar approaches to justice, among them. It highlights the key role of the United Nations (UN) in forging the new era of international criminal justice. The chapter is organized as follows. Part I examines the role of international organizations, particularly the UN, in the creation of the international and hybrid criminal tribunals since 1993 and each tribunal's legal character under international law. Part II compares and contrasts the structural composition of the tribunals, which is a critical base of knowledge about their history, how they function, and the law they enforce.
This chapter aims to study features and development of criminal law in the medieval and modern ages. The emergence, at the end of the eighteenth century, of the state monopoly on punishment, connected with the establishment of the statutory law as an ordering factor, represents a historical turn. Before, criminal law—much more than to the exercise of a right to punish—is related to the problem of determining justice in order to produce a public space substitute for revenge. The chapter, considering this different foundation, analyses the ordering factors structuring the criminal law system. It then focuses on peculiar features of the criminal trial and on key aspects such as the role of the judge, the sanctions regimes, the taxonomy of the crimes, and the regimes of proof. Some cursory remarks, as to how the criminal legal order turns into a system under a state monopoly, serve as a conclusion.
Shai Lavi and Galia Schneebaum
This chapter examines the relationship between sociology and substantive criminal law and offers a new frame of analysis for understanding the role of sociology in criminal law. It begins with an overview of the existing sociology of criminal law and highlights the fundamental tensions between the two disciplines, with an emphasis on attempts to reconceptualize the relationship. It then treats sociology in criminal law as a new paradigm for a cross-fertilization of sociology and criminal law and illustrates this paradigm by looking at the case of the diminished responsibility of offenders. This new paradigm is then further developed through a close analysis of sexual abuse offenses which concern the diminished responsibility of victims.
This chapter examines the relationship between law and technology, with particular reference to the transformations of the criminal law in the face of a data-driven society. It considers how modern law has been mediated by information and communication technologies (ICTs), such as the printing press, and how the substance of legal protection may be undermined or altered by the hyperconnectivity and artificial intelligence of current ICT infrastructures. The chapter begins by discussing different conceptions of law and technology, along with technology and neutrality in light of the rule of law. It then describes a relational model of the criminal law that highlights justice, legal certainty, and the instrumentality of the law. It concludes by calling for a “presumption of innocence by design” that should form the foundation of the architecture of a data-driven surveillance state.
This chapter examines the claims made by science and technology that have impacted upon criminal law. It looks at issues of legitimacy in criminal law and in particular at claims based upon new scientific and technological explanations of human behaviour. It considers how the criminal law has responded to these challenges. It considers whether there are areas of the criminal law where a greater understanding of the relevant science would assist the criminal justice system. It also looks at the present legal approaches to those issues and considers how the Criminal Procedure Rules 2015 may provide a framework for the courts when dealing with science and technology.
The misdemeanor system is a powerful governance tool. Comprising the vast bulk of the U.S. criminal process, it exerts enormous influence over the disadvantaged populations that are its primary clientele, and profoundly shapes the general character of American criminal justice. Characterized largely by speed, informality, and law enforcement discretion, the petty offense process generates millions of criminal convictions and burdensome punishments in ways that depart significantly from the standard due process model of adversarial adjudication, with special implications for the poor and people of color. This article provides a theoretical overview of the petty offense process and its legal and institutional structures, and explains its sociolegal significance for the criminal system as a whole.