Criminal Law and the Authority of the State (Studies in Penal Theory and Penal Ethics)

How does the state, as a public authority, relate to those under its jurisdiction through the criminal law? Connecting the ways in which criminal lawyers, legal theorists, public lawyers and criminologists address questions of the criminal law’s legitimacy, contributors to this collection explore issues such as criminal law-making and jurisdiction; the political-ethical underpinnings of legitimate criminal law enforcement; the offence of treason; the importance of doctrinal guidance in the application of criminal law; the interface between tort and crime; and the purposes and mechanisms of state punishment. Overall, the collection aims to enhance and deepen our understanding of criminal law by conceiving of the practices of criminal justice as explicitly and distinctly embedded in the project of liberal self-governance. Studies in Penal Theory and Penal Ethics: Volume 6 Contents Contributors Introduction I. The Individual Contributions II. Acknowledgements 1 Punishment and Public Authority I. Criminal Justice without Public Authority II. Public Authority and the Form of Punishment III. Justifying Robust Public Authority IV. Conclusions, Qualifications and Clarifications 2 Extraterritorial Ambit and Extraterritorial Jurisdiction I. Introduction II. On the Concept of Jurisdiction: Substantive Ambit versus Procedural Court Competence III. On Crime Conceptions as a Basis for a Default Position Regarding Ambit IV. On Possible Limitations V. Conclusion 3 Police Legitimacy and the Authority of the State I. Legitimacy and Justification II. Policing and the Enforcement of State Authority III. "Policing by Consent" and the Basic Legitimation Demand IV. Supplementing the Basic Legitimation Demand: The Role of the Impartial Spectator V. Responding Justifiably to the Basic Legitimation Demand VI. Conclusion 4 Security Against Arbitrary Government in Criminal Justice I. State Authority and the Criminal Process II. Due Process as Protection By and From the State III. Strains in the Machine: the Right to Challenge, Discretion and the Reality of Rules IV. Erosion of Due Process Protections V. Conclusion 5 A Constitutional Perspective on the Criminalisation Process in Sweden I. Introduction II. The Swedish Legislative Process III. Constitutional Rules of Particular Relevance to Criminal Law IV. Two Examples of the Legislative Process V. The Criminalisation Principles produced by the Commission of Inquiry on Prosecution VI. Findings of the Commission of Inquiry on the Use of the Criminal Law VII. Concluding Remarks 6 Against the State I. Justifications for Criminalisation of Treason in a Liberal State II. The Interest Protected by the Offence (Rechtsgut) III. Conclusion(s) 7 Legal Dogmatics, Theory and the Limits of Criminal Law I. Introduction II. The Concept of Legal Dogmatics III. Illustration: Theories of Causation and Parties to a Crime IV. Theory and Legal Dogmatics 8 The State"s Obligation to Provide a Coherent System of Remedies Across Crime and Tort I. Tort and Crime: Clarifying the Distinction II. The State"s Role in Remedies across Crime and Tort III. Minimum Remedial Questions across Crime and Tort IV. Setting Appropriate Remedial Mechanisms V. Conclusion 9 Punishment as an Inclusionary Practice: Sentencing in a Liberal Constitutional State I. The Term-setting Conception of Punishment II. Punishment and the Offender-State Relationship III. Choosing the Sentence: How to Punish Proportionately IV. Conclusion 10 Why Privatisation Matters I. Reasons-based and Agency-based Perspectives of Public Law II. Defending the Agency-based Perspective III. Conclusion Index "How does the state, as a public authority, relate to those under its jurisdiction through the criminal law? Connecting the ways in which criminal lawyers, legal theorists, public lawyers and criminologists address questions of the criminal law's legitimacy, contributors to this collection explore issues such as criminal law-making and jurisdiction; the political-ethical underpinnings of legitimate criminal law enforcement; the offence of treason; the importance of doctrinal guidance in the application of criminal law; the interface between tort and crime; and the purposes and mechanisms of state punishment. Overall, the collection aims to enhance and deepen our understanding of criminal law by conceiving of the practices of criminal justice as explicitly and distinctly embedded in the project of liberal self-governance." --publisher's description