Principles of Criminal Law (Clarendon Law Series)

by Andrew Ashworth QC (Author)

• Used

  Paperback
  1991

  $5.83

  The foremost aim of this book is to raise questions about the doctrine as well as the rules of criminal law and to examine some of the principles and policies at work in the shaping of the criminal law by the legislature, the courts, the law reform bodies, and academic commentators. This process of examination does not start from the assumption that the criminal law is grounded in a stable set of established doctrines. A more realistic view is that the arguments and assumptions which influence the development of the criminal law form a disparate group, sometimes conflicting and sometimes invoked selectively. One task is to identify the principles and policies which appear to play a major part, sometimes a part not openly avowed in the reasoning of the courts or the commentators. Then questions are raised about each of these doctrines. Are they soundly based, in moral or social terms? How are they related to the proper aims, forms, and limits of the criminal sanction in modern Western societies? Are there other principles and policies which would be more appropriate? For example, many writers on English criminal law, and some judges, assume, often with little discussion, that fairness requires that noone should be convicted of a criminal offence unless he or she intended it and knew of the circumstances or at least realized the risk of harm resulting. This subjective principle may then be used as a criterion for determining whether certain defences to crime should or should not be admitted: the tendency is to stress logic or consistency, arguing (or assuming) that the culpability requirements should be the same for all forms of offence. The approach here is to raise questions about such sequences of assumptions. Are there not powerful arguments for restrictions based on social defence or welfare ? Do such arguments apply more to some crimes than to others? Are there compelling objections to a system of criminal law which imposes duties on citizens in certain circumstances? But then assertions about social defence should not be taken at face value either: it is important to enquire whether certain restrictions really would advance the cause of social defence. The legal focus of this book is upon English criminal law. There are references to the American Law Institute's Model Penal Code, but in general the available space has been used to state and to raise questions about English law rather than to attempt a comparative survey. The focus is upon what may be termed middle-range principles and policies, which may be used to link the rules of the criminal law to views about its social function, about the relative importance of particular values and harms, about the strength of various excuses and justifications for causing harm, about the proper division of functions between the legislature and the judiciary, and about the proper classification of offences.