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Criminalising Harmful Conduct: The Harm Principle, its Limits and Continental Counterparts

Autor Nina Persak
en Limba Engleză Hardback – 29 mar 2007
Dr. Nina Peršak’s work addresses the criteria for criminalisation – that is, the criteria that should be employed in determinations whether to prohibit conduct through the criminal law. It is explicitly normative in approach, examining what should be the proper basis for criminalisation, rather than what factors legislatures actually tend to consider in adopting criminal prohibitions. Its focus is on the Harm Principle, that has been developed in Anglo-American philosophy of criminal law and on how this principal might illuminate the Continental debate on criminalisation. As such, this is a work on normative criminal law theory. Hitherto, there has existed no extended English-language treatment, comparing Anglo-American and Continental theories of criminalisation. An important strength of Dr. Peršak’s analysis lies in success in integrating themes from the two bodies of theory, the Anglo-American and the Con- nental. She begins with the Harm Principle and scrutinises its main criterion: the conduct’s intrusion into the interests of other persons. She undertakes a careful dissection of this criterion: e.g., what constitutes ‘harm’ and what is the scope of ‘others’ (and whether and to what extent the latter includes collective interests). This discussion provides not only a thoughtful analysis of the Harm Principle itself; it also provides her with the basis of her critique, later in the volume, of Continental criminalisation theories.
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Specificații

ISBN-13: 9780387464039
ISBN-10: 0387464034
Pagini: 153
Ilustrații: XV, 153 p.
Dimensiuni: 156 x 235 x 11 mm
Greutate: 0.42 kg
Ediția:2007
Editura: Springer
Colecția Springer
Locul publicării:New York, NY, United States

Public țintă

Research

Cuprins

Criminalisation.- Grounds for (Principles of) Criminalisation.- Harm Principle – A Comparative Analysis.- Continental Counterparts to the Anglo-American Concept of the Harm Principle.- Conclusion – Final Evaluation.- Some Criminological Afterthoughts.

Textul de pe ultima copertă

What are the limits to criminalisation? Is insult harmful or just offensive? What is wrong with criminalising disrespect to state symbols? Should criminal codes be moral codes? Criminalising Harmful Conduct addresses the issue of legitimate criminalisation in a modern liberal society. It argues that criminalisation, as one of the most intrusive state interventions into the autonomous sphere of the individual, should be limited by normative principles, defining the substance of what can be legitimately proscribed. In part, it is a comparative study between two major criminal legal systems (its theories), the Anglo-American, on one side, and the Continental criminal legal system of Germanic legal circle, on the other. Moreover, the book explores a model structure of the ideal criminalisation in respect of the principles and other criteria that should be followed to render the outcome justifiable. The model‘s central element is the Anglo-American principle called the ‘harm principle’, which is elaborated upon, its main elements (particularly ‘harm’) and functions analysed, and some controversial open questions tackled. Further limits on the harm principle are proposed. An in-depth analysis of four Continental legal concepts, which would on the face of it seem as counterparts to the harm principle, reveals that the overlap is not complete. The concept of ‘legal good’ shows the most potential and is thus examined in more detail. As it might be desirable to adopt the harm principle in the Continent, some practical ideas on how to achieve that are also mentioned.

Caracteristici

Moves beyond analytical and descriptive Introduces a substantive principle of criminalisation into the Continental criminal legal theory The only comparative (Anglo-American v. Continental) book on criminalisation in English