Studies in Penal Theory and Penal Ethics
All volumes in this series are available from the publisher's website
Other publications appear further below.
Penal Censure: Engagements Within and Beyond Desert Theory
du Bois-Pedain, A. and Bottoms, A.E. (eds) (forthcoming) Penal Censure: Engagements Within and Beyond Desert Theory. Oxford: Hart.
The exploration of penal censure in this book is inspired by the fortieth anniversary in 2016 of the publication of Andreas von Hirsch's Doing Justice, which opened up a fresh set of issues in theorisation about punishment that eventually led von Hirsch to ground his proposed model of desert-based sentencing on the notion of penal censure. Von Hirsch's work thus provides an obvious starting-point for an exploration of the importance of censure for the justification of punishment, both within von Hirsch's theory of just deserts and from the perspectives of other theoretical approaches. It also provides an opportunity for engaging with censure more broadly from philosophical, sociological-anthropological and individual-psychological perspectives. The essays in this collection map the conceptual territory of censure from these different perspectives, address issues for desert theory that arise from fuller understandings of censure, and consider afresh the role of censure within the jurisprudence of punishment. They show that analyses of censure from different vantage points can significantly enrich punishment theory, not least by providing a conceptual basis for perceiving common ground between and thus connecting different strands of penal theory.
Criminal Law and the Authority of the State
du Bois-Pedain, A., Ulväng, M. and Asp, P. (eds) (2017) Criminal Law and the Authority of the State. Oxford: Hart.
How does the state, as a public authority, relate to those under its jurisdiction through the criminal law? Connecting the ways in which criminal lawyers, legal theorists, public lawyers and criminologists address questions of the criminal law's legitimacy, contributors to this collection explore issues such as criminal law-making and jurisdiction; the political-ethical underpinnings of legitimate criminal law enforcement; the offence of treason; the importance of doctrinal guidance in the application of criminal law; the interface between tort and crime; and the purposes and mechanisms of state punishment. Overall, the collection aims to enhance and deepen our understanding of criminal law by conceiving of the practices of criminal justice as explicitly and distinctly embedded in the project of liberal self-governance.
Setting the Watch: Privacy and the Ethics of CCTV Surveillance
Larson, B (2011) Setting the Watch: Privacy and the Ethics of CCTV Surveillance. Oxford: Hart.
Many liberals consider CCTV surveillance in public places - particularly when it is as extensive as it is in England - to be an infringement of important privacy-based rights. An influential report by the House of Lords in 2009 also took this view. However there has been little public, or academic, discussion of the underlying principles and ethical issues. What rights of privacy or anonymity do people have when abroad in public space? What is the rationale for these rights? In what respect does CCTV surveillance compromise them? To what extent does the state's interest in crime prevention warrant encroachment upon such privacy and anonymity rights? This book offers the first extended, systematic treatment of these issues. In it, the author develops a theory concerning the rationale for the entitlement to privacy and anonymity in public space, based on notions of liberty and dignity. She examines how CCTV surveillance may compromise these rights, drawing on everyday conventions of civil inattention among people in the public domain. She also considers whether and to what extent crime-control concerns could justify overriding these entitlements. The author's conclusion is that CCTV surveillance should be appropriate only in certain restrictively-defined situations. The book ends with a proposal for a scheme of CCTV surveillance that reflects this conclusion.
Previous Convictions at Sentencing: Theoretical and Applied Perspectives
Roberts, J.V. and von Hirsch, A. (eds) (2010) Previous Convictions at Sentencing: Theoretical and Applied Perspectives. Oxford: Hart.
This volume in the Penal Theory and Penal Ethics series addresses one of the oldest and most contested questions in the field of criminal sentencing: should an offender's previous convictions affect the sentence? This question provokes a series of others: Is it possible to justify a discount for first offenders within a retributive sentencing framework? How should previous convictions enter into the sentencing equation? At what point should prior misconduct cease to count for the purposes of fresh sentencing? Should similar previous convictions count more than convictions unrelated to the current offence? Statutory sentencing regimes around the world incorporate provisions which mandate harsher treatment of repeat offenders. Although there is an extensive literature on the definition and use of criminal history information, the emphasis here, as befits a volume in the series, is on the theoretical and normative aspects of considering previous convictions at sentencing. Several authors explore the theory underlying the practice of mitigating the punishments for first offenders, while others put forth arguments for enhancing sentences for recidivists. The practice of sentencing repeat offenders in two jurisdictions (England and Wales, and Sweden) is also examined in detail.
Incivilities: Regulating Offensive Behaviour
von Hirsch, A. and Simester, A. (eds) (2006) Incivilities: Regulating Offensive Behaviour. Oxford: Hart.
Prohibitions against offensive conduct have existed for many years, but their extent and use was on the decline. Recently, however, several jurisdictions, including England and Wales, have moved to broaden the reach and severity of measures against incivilities. New measures include expanded targeting of unpopular forms of public conduct, such as begging, and legislation authorising magistrates to issue prohibitory orders against anti-social behaviour. Because these quality-of-life prohibitions can be so restrictive of personal liberties, it is essential to develop adequate guiding and limiting principles concerning State intervention in this area.
This book addresses the legal regulation of offensive behaviour. Topics include: the nature of offensiveness; the grounds and permissible scope of criminal prohibitions against offensive behaviour; the legitimacy of civil orders against incivilities; and identifying the social trends that have generated current political interest in preventing incivilities through intervention of law.
These questions are addressed by eleven distinguished philosophers, criminal law theorists, criminologists, and sociologists. In an area that has attracted much public comment but little theoretical analysis to date, these essays develop a fuller conceptual framework for debating questions about the legal regulation of offensive behaviour.
Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms
von Hirsch, A., Roberts, J.V., Bottoms, A.E. (eds) (2003) Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms. Oxford: Hart.
Restorative Justice has emerged around the world as a potent challenge to traditional models of criminal justice,and restorative programmes, policies and legislative reforms are being implemented in many western nations. However, the underlying aims, values and limits of this new paradigm remain somewhat uncertain and those advocating Restorative Justice have rarely engaged in systematic debate with those defending more traditional conceptions of criminal justice. This volume, containing contributions from scholars of international renown, provides an analytic exploration of Restorative Justice and its potential advantages and disadvantages. Chapters of the book examine the aims and limiting principles that should govern Restorative Justice, its appropriate scope of application, its social and legal contexts, its practice and impact in a number of jurisdictions and its relation to more traditional criminal-justice conceptions.
These questions are addressed by twenty distinguished criminologists and legal scholars in papers which make up this volume. These contributions will help clarify the aims that Restorative Justice might reasonably hope to achieve, the limits that should apply in pursuing these aims, and how restorative strategies might comport with, or replace, other penal strategies.
Ethical and Social Perspectives on Situational Crime Prevention
von Hirsch, A., Garland, D. and Wakefield, A. (eds) (2000) Ethical and Social Perspectives on Situational Crime Prevention. Oxford: Hart.
Situational crime prevention has drawn increasing interest in recent years,yet the debate has looked mainly at whether it 'works' to prevent crime. This volume addresses the ethics of situational crime prevention and also examines the place of situational crime prevention within criminology. The contributors are twelve distinguished criminologists who together advance our understanding of the ethical and societal questions underlying crime prevention.
Other Publications
Criminal Law Forum Special Issue on Sentencing
Criminal Law Forum Volume 28, Issue 3, September 2017 (Special Issue: Sentencing)
While there is a large body of comparative research in substantive criminal law, sentencing scholarship is still a far less internationalised field. This is particularly true in respect of legal-doctrinal work as compared to sociological-empirical studies of sentencing practice (where research questions and methodologies travel quite happily). It also contrasts sharply with the cross-jurisdictional reach of philosophical writings on punishment. Exchanges between practitioners from different non-proximate jurisdictions about sentencing law and practice are comparatively rare events. Some penal innovations –such as Scandinavian day fines, or Australian restorative justice conferencing – inspire reform elsewhere. But for the most part, efforts to improve sentencing law and practice often remain domestically focused or look only to jurisdictions considered close in legal tradition and approach. This is unfortunate because modern sentencing systems all face similar issues. They need continuously to resolve questions concerning the appropriate distribution of tasks between legislatures, judiciaries and administrative bodies, find ways of managing the tension between judicial authority and legislative-administrative guidance of sentencing decisions, and set limits to their use of imprisonment as a sanction. The articles collected in this Special Issue are intended to facilitate cross-jurisdictional discussion of sentencing issues.
Sentencing Multiple Crimes
Ryberg, J., Roberts, J.V. and de Keijser, J.W. (eds) (2017) Sentencing Multiple Crimes. Oxford: OUP.
Most people assume that criminal offenders have only been convicted of a single crime. However, in reality almost half of offenders stand to be sentenced for more than one crime. The high proportion of multiple-crime offenders poses a number of practical and theoretical challenges for the criminal justice system. For instance, how should courts punish multiple offenders relative to individuals who have been sentenced for a single crime? Should a court simply determine a specific sentence for each individual crime and then impose the total sentences on the offender? If this happens, an offender convicted of a large number of crimes of low seriousness will receive a sentence comparable to that which would be appropriate to a single very serious crime. Such an outcome would violate the principle of ordinal proportionality in sentencing. This book discusses a range of questions relating to multiple crime cases from the perspective of several legal theories. It considers questions such as the overall proportionality of the crimes committed, the temporal span between the crimes, and the relationship between theories about the punitive treatment of recidivists and multiple offenders. Contributors representing six different countries and the fields of legal theory, philosophy, and psychology offer their perspectives to the volume, broadening the scope beyond that of the United States. The chapters in this volume therefore contribute to international and domestic efforts to promote a more principled approach to sentencing offenders convicted of multiple offences.
The Centre contributed to the workshop from which this collection arose.
Deserved Criminal Sentences
von Hirsch, A. (2017) Deserved Criminal Sentences. Oxford: Hart.
This book provides an accessible and systematic restatement of the desert model for criminal sentencing by one of its leading academic exponents. The desert model emphasises the degree of seriousness of the offender's crime in deciding the severity of his punishment, and has become increasingly influential in recent penal practice and scholarly debate. It explains why sentences should be based principally on crime-seriousness, and addresses, among other topics, how a desert-based penalty scheme can be constructed; how to gauge punishments' seriousness and penalties' severity; what weight should be given to an offender's previous convictions; how non-custodial sentences should be scaled; and what leeway there might be for taking other factors into account, such as an offender's need for treatment. The volume will be of interest to all those working in penal theory and practice, criminal sentencing and the criminal law more generally.
This book is the Founding Director's latest exposition of his desert model for criminal sentencing.
Liberal Criminal Theory: Essays for Andreas von Hirsch
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.
This collection, co-edited by the Centre's Deputy Director, is a Festschrift in honour of the Founding Director's contributions to liberal criminal theory.
Crimes, Harms, and Wrongs
Simester, A.P. and von Hirsch, A. (2011) Crimes, Harms, and Wrongs: On the Principles of Criminalisation. Oxford: Hart.
When should we make use of the criminal law? Crimes, Harms, and Wrongs offers a philosophical analysis of the nature and ethical limits of criminalisation. The authors explore the scope of harm-based prohibitions, proscriptions of offensive behaviour, and 'paternalistic' prohibitions aimed at preventing self-harm, developing guiding principles for these various grounds of state prohibition. Both authors have written extensively in the field. They have produced an integrated, accessible, philosophically-sophisticated account that will be of great interest to legal academics, philosophers, and advanced students alike.
This book was produced in collaboration by the Founding Director and Professor Andrew Simester, who was a Visiting Fellow at the Centre at the time.
Punishment and Retribution
Zaibert, Leo. (2006) London Routledge
Discussions of punishment typically assume that punishment is criminal punishment carried out by the State. Punishment is, however, a richer phenomenon and it occurs in many contexts. This book contains a general account of punishment which overcomes the difficulties of competing accounts. Recognizing punishment's manifoldness is valuable not merely in contributing to conceptual clarity, but in that this recognition sheds light on the complicated problem of punishment's justification. Insofar as they narrowly presuppose that punishment is criminal punishment, most apparent solutions to the tension between consequentialism and retributivism are rather unenlightening if we attempt to apply them in other contexts. Moreover, this presupposition has given rise to an unwieldy variety of accounts of retributivism which are less helpful in contexts other than criminal punishment. Treating punishment comprehensibly helps us to better understand how it differs from similar phenomena, and to carry on the discussion of its justification fruitfully.
Appraising Strict Liability
Simester, A.P. (ed) (2005) Appraising Strict Liability. Oxford: OUP.
Strict liability is a controversial phenomenon in the criminal law because of its potential to convict blameless persons. Offences are said to impose strict liability when, in relation to one or more elements of the actus reus, there is no need for the prosecution to prove a corresponding mens rea or fault element. For example, in the 1986 case of Storkwain, the defendant chemists were convicted of selling controlled medicines without prescription simply upon proof that they had in fact done so. It was irrelevant that they neither knew nor had reason to suspect that the ‘prescriptions’ they fulfilled were forgeries. Thus strict liability offences have the potential to generate criminal convictions of persons who are morally innocent. This book is a collection of contributions offering a consideration of the problem of strict liability in the criminal law. The chapters, including European and Anglo-American perspectives, provide an examination of the fundamental issues. They explore the definition of strict liability; the relationship between strict liability and blame, and its implications for the requirement for culpability in criminal law; the relevance of European and human rights jurisprudence; and the interaction between substantive rules of strict liability and evidential presumptions.
This book arose from a conference hosted by the Centre.
The age-old debate about what constitutes just punishment has become deadlocked. Retributivists continue to privilege desert over all else, and consequentialists continue to privilege punishment's expected positive consequences, such as deterrence or rehabilitation, over all else. In this important intervention into the debate, Leo Zaibert argues that despite some obvious differences, these traditional positions are structurally very similar, and that the deadlock between them stems from the fact they both oversimplify the problem of punishment. Proponents of these positions pay insufficient attention to the conflicts of values that punishment, even when justified, generates. Mobilizing recent developments in moral philosophy, Zaibert offers a properly pluralistic justification of punishment that is necessarily more complex than its traditional counterparts. An understanding of this complexity should promote a more cautious approach to inflicting punishment on individual wrongdoers and to developing punitive policies and institutions.