Law

Criminal law has been described as a species of political and moral philosophy; whether that can be said to be true is not at all certain, but criminal law can be the subject of philosophical study. The aim of this book is to explore some of the philosophical foundations of criminal law. English and North American contributors have produced chapters for this volume.

This book provides an analysis of the administration of the European Union and the legal framework within which that administration operates. It examines the multifarious approaches, techniques, and structures of public administration in order to systematize and assess the solutions they offer to political, social, and economic problems. The legal framework of administration is examined from the standpoint of how it meets the demands of specific policy objectives established by democratically accountable decision-makers. Administrative law structures and many of its underlying principles have developed in an evolutionary and isolated manner in each policy area. While aware of the diversity of specific areas, this book takes an overarching approach, setting out the common rules and principles that constitute the general body of EU administrative law. By integrating the disciplines of political and administrative science, and administrative law, the book offers a rich explanation and critique of the complex executive framework of the EU.

Until quite recently it was commonplace to describe the witness as the ‘forgotten man’ in the criminal justice system. The last few years have seen a dramatic shift in thinking with an increasing recognition of the legitimate expectations and rights of witnesses within the criminal process. At the same time research has drawn attention to a host of factors that conspire to deny the courts access to the best evidence potentially available when so-called vulnerable and intimidated witnesses are called upon to testify in accordance with conventional adversarial trial procedures and methods. The official response so far embodies an approach best described as one of accommodation. Efforts have centred on improving the treatment of witnesses within the established trial framework while preserving an overall commitment to key tenets of adversarial theory. The latter include the principle of orality with its general insistence upon direct evidence and the use of cross-examination as a device for testing the credibility of witnesses. The central contribution of this book lies in its demonstration of the significant limitations of the prevailing approach, most recently manifest in the Youth Justice and Criminal Evidence Act 1999. By providing a broader theoretical framework for understanding the treatment of vulnerable witnesses it signals the need to extend the search for solutions beyond the boundaries of the paradigmatic adversarial model. Drawing upon modern psychological, socio-linguistic, and victimological study across common law jurisdictions, the book provides a critique of the special measures of the 1999 Act and of adversarial trial procedure more generally.

The modern adversarial criminal trial emerged from the punitive and procedural upheaval in the criminal law of the first half of the nineteenth century. The campaign against capital punishment, which marked the century's early decades, stimulated procedural reform, including the enactment in 1836 of the Prisoners' Counsel Act. The 1836 Act enabled defence counsel for the first time to address the jury in felony trials. It generated a unique debate in Parliament, the press and the legal professions on the merits and dangers of advocacy. This book examines the debate and the practical implications of procedural reform for the conduct of criminal trials. The topics discussed include the increasing sophistication of prosecution and defence advocacy, the beginnings of modern professional ethics and the conscious rationalisation of adversary procedure as the best means to discover the truth. The book analyses the practice of advocacy and identifies its significance for the administration of justice. It includes case studies of four major criminal trials that demonstrate the interrelationships between advocacy and procedure in the making of the adversarial criminal trial.

The prominence of the Advocate General is one of the most distinctive and controversial features of the European Court of Justice. The Advocate General and EC Law is the first comprehensive study of the Advocate General and his role in the development of EC Law. In Part I, the book examines the history of the role, the questions over its future, and the role's importance in the procedures of the Court. In Part II, the book analyses the contribution of some of the most influential Advocates General to the development of specific aspects of Community law, including Francis Jacobs on intellectual property, Walter van Gerven on discrimination, and Jean Pierre Warner on competition procedure. In Part III, the book explores the contributions of a range of Advocates General to specific principles of Community Law, including state liability, direct effect, and the concept of citizenship. This book offers a unique perspective on politics of the European Court of Justice — one of the driving forces behind closer European integration.

This book describes the collective responses of bereaved people to the aftermath of violent death, a subject not dealt with in any detail in the literature that is currently available. It concentrates particularly on the birth, development, and organization of the self-help and campaigning groups that have emerged in the last decade. The book examines these as attempts to give institutional expression to interpretations of grief, and shows us that these attempts, in their turn, are implicated in a potent phenomenology of mourning. In addition, the book had special access to a number of groups and uses the information that has been gathered through this access to discuss the practical and political importance of the work of these groups, and their affects on policing, the media and the law.

The United States has undertaken a radical, unprecedented social experiment with massive immigration and deportation enforcement. Since the passage of harsh new deportation laws in 1996, the U.S. has deported tens of millions of noncitizens (“aliens”). Many are undocumented, but many others are long-term legal residents with U.S. families. Deportation has torn through many communities like a capricious tornado: touching down suddenly and leaving a trail of devastation in its wake. It has had profound, though still-understudied, effects on individuals, families, and communities, both in the U.S. and in the countries to which deportees are sent. The Obama Administration has continued—and actually expanded—the deportation system. The U.S. has now created what may be termed, somewhat provocatively, a new American diaspora: a forcibly uprooted population of people with deep and cohesive connections to each other and to the nation-state from which they were removed. Once deportees have been expelled to places like Guatemala, Cambodia, Haiti, and El Salvador, many face severe isolation, alienation, persecution and, sometimes, death. Many may never be able to return. This book now considers the current U.S. system. It examines U.S. deportation as it works and as it might work more justly and fairly. Addressing various political, social, philosophical and legal issues, the author considers how deportation works within the ‘rule of law.’ Concluding that the U.S. deportation system remains an anachronistic, ad hoc, legally dubious affair, the book proposes a more human rights-oriented, humane and rational deportation system.

This book provides a way to understand church–state conflict and the relationship between religion and liberal democracy in a contemporary era. It is argued that the fundamental reason for the church–state conflict is our aversion to questions of religious truth. By trying to avoid the question of religious truth, law and religion have ultimately reached a state of incoherence. It asserts that the answer to this dilemma is to take “the agnostic turn”—that is, to take an empathetic and imaginative approach to questions of religious truth, one that actually confronts rather than avoids these questions, but without reaching a final judgment about what that truth is.

This book examines the legal issues that arise when we seek to avoid the untoward consequences of an action by claiming that our perception was flawed. We all make mistakes: we might overpay a debt, make an unfavourable contract, or be sued or accused of a crime as a result of our mistake. Claims to alleviation on the grounds of mistake are likely to arise wherever the law prescribes a state of mind (some kind of intent) as a prerequisite for the application of a legal rule. This book asks when the fact that a person made a mistake should entitle them to alleviation. This may involve the intention to enter into a contract or a payment, in which case a person could seek its reversal, or it might involve the intent to commit a tort or crime, in which case they could seek forgiveness for the offence. The book defines ‘alleviating’ mistakes as those which entitle a person to relief from untoward consequences of their mistake. There is no general ‘law of mistake’ and, despite their similarities, few discussions of mistake in one setting pause to consider mistakes in other contexts. The goals of fields as disparate as contracts and criminal law are very different: how do these differences affect the treatment of mistakes? The book sets out a new taxonomy of mistakes. Its analysis reveals that over the past century, there has been a remarkable increase in the receptivity of courts and scholars to claims for both reversal and forgiveness—a waxing of alleviating mistakes.

This book examines two problems in private law that are posed by the ‘good Samaritan’: First, do we have a legal duty to give aid to our fellow human beings? In particular: can we be held liable for damages if we fail to do so? Second, if we do come to the rescue, will we have any claim for the expenses that we incurred, or for a reward? This book examines and compares the responses of the Roman, French, German, and English legal systems to these problems, providing a treatment of English law in relation to ‘liability for nonfeasance’ (or ‘liability for omissions’) and negotiorum gestio (or ‘the doctrine of necessity’). In Part I, the book examines English law, which draws a distinction between action and inaction or ‘feasance’ and ‘nonfeasance’. In general, one is not held liable for failing to act. It explores the theoretical justifications for drawing this distinction and the different approaches taken in France and Germany, concluding that the English rule of no liability for nonfeasance requires reconsideration. In Part II the English approach to the problem of reimbursement or reward is examined, detailing its profound differences from the Continental European approach. In principle, English law does not grant the necessitous intervener a claim against the beneficiary of his intervention. The book examines the theoretical justifications for assuming this position and again concludes that the law deserves reconsideration. Finally, the book concludes by demonstrating close interconnections between the two traditionally independent issues.