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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.
A P Simester is Professor of Law and Provost's Chair at the National University of Singapore, an Honorary Research Fellow at the Institute of Criminology, University of Cambridge, and Honorary Professor in Law at Uppsala University. Antje du Bois-Pedain is a University Senior Lecturer at the Faculty of Law, University of Cambridge, and a Fellow of Magdalene College, Cambridge. Ulfrid Neumann is Professor of Criminal Law, Criminal Procedure, Legal Theory and Sociology of Law at the Goethe-University in Frankfurt.
Part 1: Punishment and Prevention 1. Punishment Paradigms and the Role of the Preventive State Andrew Ashworth and Lucia Zedner I. The Role of Prudential Disincentives II. The Scope of the State's Authority to Censure III. The State's Preventive Obligation IV. Developing the Preventive Obligation V. Conclusion 2. Prevention, Censure and Responsibility: The Recent Debate on the Purposes of Punishment* Claus Roxin 23 I. Overcoming the Simple Contrast between Two Strands of Theories? II. The Shortcomings of Traditional 'Absolute' and 'Relative' Theories of Punishment III. Principled Limits on Punishment, Guilt and Censure IV. Why Must the Perpetrator Allow Himself to be Roped in for the Achievement of the State's Preventive Aims? V. On the Expressive Function of Punishment VI. Conclusion 3. Prevention with a Moral Voice JR Edwards and AP Simester I. Reconciling Desert and Deterrence II. Respecting Persons: Hegel and the Moral Voice III. Not Treating People as Means IV. Conclusion 4. The 'Deserved' Punishment* Ulfrid Neumann I. 'Effective' versus 'Deserved' Punishment: a Hypothetical Scenario II. The Deserved Punishment: an Essential Component of 'Absolute' (Deontological) Theories of Punishment III. The Deserved Punishment in Complex ('Unified') Theories of Punishment IV. The Culpability Principle: Ways towards its Recognition within a Theory of Punishment V. The Culpability Principle as an Integral Component of the Institution of Punishment VI. Punishment as Reaction and as Retribution Part 2: Punishment, Desert and Communication 5. After the Crime: Post-Offence Conduct and Penal Censure Julian V Roberts and Hannah Maslen I. Introduction II. Defining Post-Offence-related Conduct III. Justifying the Mitigating Role of Commendable POC: An Offence-seriousness Approach IV. A More Expansive Account of the Normative Value of POC: Censure and Broader Retributive Values V. Some External Objections to POC as a Sentencing Factor VI. Conclusions 6. Does Punishment Honour the Offender?* Kurt Seelmann I. Overview II. Reprobation and Treatment as a 'Moral Agent', ie as a Participant in Moral Discourse III. Punishment as Honouring the Offender in German Idealist Philosophy IV. What are the Differences between Strawson and the German Idealists with respect to the Function of Penal Censure? V. Imputation and the Person prior to Idealism: Attribution of Responsibility as a way of Taking Identity Seriously VI. Criticising this Tradition with Assistance from Hegel? (The Case of Forgiveness) 7. Criminal Law, Crime and Punishment as Communication Klaus Gunther I. Punishment: From Welfare Instrumentalism to Moral Expressivism II. The Communicative Turn III. Punishment as Communication IV. What does the Crime Say? V. What does the Criminal Law Say? VI. Why Hard Treatment? VII. Communication as an Action VIII. Again: Punishment as Communication 8. Can Deserts Be Just in an Unjust World Michael Tonry I. Recognition of the 'Unjust World' Problem II. Deep Disadvantage and Criminal Behaviour III. Deep Disadvantage as an Excuse or Mitigation IV. Social Adversity in Mitigation V. A Celebration Part 3: Rechtsguter, Harm and Offence in Criminalisation 9. 'Rights of Others' in Criminalisation Theory Tatjana Hornle I. Strengths and Weaknesses of the Harm Principle II. Legal Moralism as the Only Alternative? III. The Tasks of Law IV. The Concept of 'Rights' V. Legal Rights Claims versus Moral Rights VI. A Final Remark 10. The Harm Principle and the Protection of 'Legal Goods' (Rechtsguterschutz): a German Perspective* Winfried Hassemer I. Dedication II. Harm Orientations through the Doctrine of Legal Goods and the Harm Principle III. Aims of the Harm-Orientation Doctrines IV. Limits 11. 'Remote Harms' and the Two Harm Principles RA Duff and SE Marshall I. The Two Harm Principles II. Remote Harms and the Harmful Conduct Principle III. The Harm Prevention Principle and Regulatory Offences IV. Why Should We Obey? 12. Using 'Quality of Life' to Legitimate Criminal Law Intervention: Gauging Gravity, Defining Disorder Nina Persak I. Assessing Harm II. Developing a Quality of Life Conception of Harm III. Application of the Model in Different Cultural Settings IV. Quality of Life in Defining and Regulating Disorder? Distinction from Security Discourses V. Concluding Thoughts 13. Criminal Liability for Offensive Behaviour in Public Spaces* Wolfgang Wohlers I. Searching for Standards of Legitimate Criminal Legislation II. Concluding Remarks Part 4: Criminal Justice in a Liberal State 14. Can Punishment Be Just?* Bernd Schunemann I. The Three Levels of Penal Justice II. A Penal Theory fit for Contemporary European Culture III. Just Punishment Requires a Just Demarcation of Criminal Conduct IV. The Requirements of Penal Justice Regarding the Structure of the Criminal Trial V. Concluding Remarks 15. Punishment and the Ends of Policing John Kleinig I. Is Punishment Ever a Legitimate Police Function? II. The Criminal Justice System III. The Police Role (or the Ends of Policing) IV. Police and Punishment V. Conclusion 16. The Place of Criminal Law Theory in the Constitutional State Antje du Bois-Pedain I. Criminal Law Theory in German Constitutional Jurisprudence II. Shaping the Interface between Constitutional Law and Penal Theory through a Constitutional 'Right not to be Punished'? The Limited Potential of Constitutional Incorporation III. What Penal Theory has to Offer Law and Practice in a Constitutional State IV. Concluding Remarks 17. Criminal Law Theory and the Limits of Liberalism Paul Roberts I. Questioning the Liberal Consensus in Contemporary Criminal Law Theory II. Liberal Political Morality, in Miniature III. Liberal Criminal Law Theory for Liberals IV. Two Theoretical Limitations: Incompleteness and Indeterminacy V. From Liberal Criminal Law Theory to Cosmopolitan Criminal Jurisprudence
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