Tài liệu Definition in the Criminal Law docx

DEFINITION IN THE CRIMINAL LAW In recent years, a number of key terms of the criminal law have seemed to defy definition. Scepticism over the possibility of defining basic concepts and identifying general principles has been voiced by both judges and academic commentators. The condition of the criminal law raises broad issues of theoretical interest, but also touches on practical concerns such as proposals for reform made by the Law Commission, the campaign for codification, and the requirement of legality under Article 7 of the ECHR, given greater prominence since the implementation of the Human Rights Act 1998. This book undertakes an investigation of the role and scope of defini- tion within the criminal law set within a wider examination of the nature of legal materials and the diversity of perspectives on law. It offers a fasci- nating account of how the rules and principles found within legal materi- als provide practical opportunities for responding to, rather than merely following the law. This opens up a richer notion of legal doctrine than has been acknowledged in earlier representations of the workings of legal rules and principles. It also leads to a rejection of some of the established views on the roles of judges and academics, and provides the incentive for a more rigorous assessment of the serious challenge made by a ‘criti- cal’ perspective on the criminal law. The intimate connection between the use of legal materials and the practice of definition is explored through a number of detailed studies. These deal with some of the apparently intractable problems concerning the definition of theft, and changes to the definition of recklessness culmi- nating in the recent decision of the House of Lords in R v G. Theoretical insights on the different features of the process of definition and a remod- elling of culpability issues are combined to question the conventional intellectual apparatus of the criminal law. The approach developed within the book offers a more realistic appraisal of the feasibility of reform, and of expectations for the principle of legality within the criminal law. [...]... matter of deciding whether the principle in use (i) should be instantiated in this case, with the possibility of also delving into the principle as rationale in use (ii) Looked at from the side of the competing rule, it is a matter of deciding the structural positioning of the rule within the system of legal norms, as either dominant over or subordinated to the principle being considered Yet these are two... fixing the content of the rule’s subject matter, and then applying the legal outcome provided by the rule to anything that falls within that subject matter In the case of a legal provision amounting to a principle, the application of the principle is a matter of fixing the content of the principle’s subject matter, and then considering whether the law should apply the outcome provided by the principle... of the criminal law if it is in the nature of those terms to defy comprehensive definition More interestingly, this scepticism goes on the offensive in suggesting that the nature of the basic terms of the criminal law is such as to require a specialist function to be performed by the judiciary in applying these terms to specific cases Lord Goff has refined this judicial scepticism in his stimulating... should be influencing the further judgement in use (i) needed to determine whether a particular instantiation of freedom of expression should hold How does this process differ from the process involving discussion of the purpose or rationale behind the legal rule providing a definition of theft, in order to settle the semantic imprecision of a term in that definition, and by so doing determine whether a... understanding of the statutory text Even with a common law definition, the exercise of seeking the rationale for the rule within the discussion of earlier cases is a normal step towards resolving what the rule means The process is illustrated in a House of Lords case concerned with the meaning of ‘appropriation’ in the definition of theft.52 Lord Steyn rejects a narrower definition of appropriation on the. .. that the basic technique for reforming the criminal law was to identify places in the law where an existing rule failed to give effect to the underlying principle and then to change the rule to avoid the dislocation with principle.26 Goff himself seems to be open to such an approach, in suggesting that the principle when identified can surely be formulated in such a mannner as to avoid the worst injustices... anything that falls within that subject matter, in the light of other factors Whether these really amount to differences in substance depends on whether the sort of judgement involved in classifying something as a member of the rule’s subject matter is different to the sort of judgement made in considering whether what falls under a principle’s subject matter should be treated in accordance with the principle... (1987) 2 Denning Law Journal 79, 92–94 in part due to the jurist being coopted on the side of the judge against the dangers of codification, and in part due to Goff taking a cooperative line on the uses of comparative law such as espoused by Markesinis, above n 9 A completely different insight on the contrast between academic and judicial approaches to the criminal law, respectively tending to adopt... particular instance should be held to be a case of theft? Discussion of the rationale for a rule, and how it might affect our understanding of the words constituting the rule, are commonplace practices Where the rule is in statutory form, as it is in the English definition of theft, seeking the rationale for the rule is nothing more than a conventional exercise in statutory interpretation, adopting the purposive... put on the loosely collected causes of semantic imprecision provided here, by considering a single example The definition of theft in ss 1–6 of the Theft Act 1968 includes within its terms illustrations of the particularly Search for Principle 17 In such a case, the simplistic model with its two straightforward steps, identifying instances of the general class covered by the rule and then dealing with . DEFINITION IN THE CRIMINAL LAW In recent years, a number of key terms of the criminal law have seemed to defy definition. Scepticism over the possibility. with an interest in the law, whether or not they are concerned particularly with the criminal law, whether or not they have reflected previously on the process