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Appraising Strict Liability$
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Andrew Simester

Print publication date: 2005

Print ISBN-13: 9780199278510

Published to Oxford Scholarship Online: January 2010

DOI: 10.1093/acprof:oso/9780199278510.001.0001

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Whose Values Should Determine When Liability is Strict?

Whose Values Should Determine When Liability is Strict?

Chapter:
(p.105) 5 Whose Values Should Determine When Liability is Strict?
Source:
Appraising Strict Liability
Author(s):

Jeremy Horder

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199278510.003.0005

Assuming that strict liability is, at least on some occasions, rightly imposed, there are at least three ways in which one might decide whose values should inform the decision to construe a particular crime as one of strict liability. This chapter outlines these three theories: First, there is ‘legislative positivism’, where the issue is whether an ordinary or purposive reading of the words of the offence demonstrates that a fault requirement is expressly or impliedly required by Parliament itself. Secondly, there is the ‘common law’ theory, according to which even if Parliament has not expressly or impliedly provided for a requirement of fault, such a requirement can be imposed where justice and good conscience require it. Third, there is the ‘respectful deference’ theory, which states that deference as respect requires not submission but a respectful attention to the reasons offered or which could be offered in support of a decision, whether that decision be the statutory decision of the legislature.

Keywords:   strict liability, criminal law, values, legislative positivism, common law theory, respectful defence

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