The Limits of Criminal Law: A Comparative Analysis of Approaches to Legal Theorizing

The Limits of Criminal Law: A Comparative Analysis of Approaches to Legal Theorizing

The Limits of Criminal Law: A Comparative Analysis of Approaches to Legal Theorizing

The Limits of Criminal Law: A Comparative Analysis of Approaches to Legal Theorizing

Synopsis

This book compares the civil and common law approach to analyze the question - 'What sorts of conduct may the state legitimately make criminal?'. Through a comparative focus on an Australian and German context, this book utilizes interviews with Australian criminal law experts and contrasts them with the German model based on 'Rechtsgutstheorie'. By comparing the largely descriptive, criminology-based Australian approach with the more sophisticated German legal theory model the author finds the Australian approach to be suffering from a 'normative flaw', illustrated by the distinction of different approaches to the offences of incest, bestiality and possession of illicit drugs. Carl Constantin Lauterwein discovers that while there is strength in the common law approach of describing the possible reasons for criminalizing certain conduct, the approach could be significantly improved by scrutinizing the legitimacy of those reasons.

Excerpt

Mark Findlay

Comparative legal analysis has never been a convincing area of socio-legal scholarship. In no small measure this is due to the incapacity of lawyers to appreciate and activate deep contextual understandings prior to engaging the comparative endeavour. For some years now I have advocated the use of comparative contextual analysis to enliven a truly reflective commitment, at least when understanding the intersection between procedural traditions. This book charts a similar course with theoretical foundations as its frame of reference.

However, theorizing criminal law across jurisdictions wherein the terrain and nature of theory and theorizing is differentially experienced can be fraught with difficulty. Without careful contextualization one is left comparing cheese and chalk, with the consequence that one person’s theory is another’s atheoretical or ahistorical justification.

The first challenge for this text was to ‘re-imagine’ theory and theorizing in two very different legislative and political locations. The naïve intention was to cast an emergent federal common law jurisdiction against an established civil law tradition in order to critique the place of theory in two very different criminal laws. What became immediately apparent was the reality that theory is enunciated and invigorated in unique ways dependent on the purposes for determining criminal liability and imposing criminal sanctions. The operational relativity of criminal law, therefore, was as much a determinant of the nature of theory as it is a product of its influence.

The author initially anticipated a comparative enterprise little more than contrasting legal narrative so that theory would be revealed in different forms and with differential impacts, and out of distinct procedural and normative histories. This was not possible. Undaunted, the research developed a rich conversational methodology giving voice to important critics, practitioners and scholars who did much more than articulate the trajectory of theorizing against which a more documented theoretical tradition could be reflected. The result is a refreshing discourse on the veracity of theory in the criminal laws of Australia and Germany, as experienced in Australia by those who rationalize, argue and reformulate

1 Professor of Criminal Justice, Law School, University of Sydney; Professor of International Criminal Justice, Law School, University of Leeds.

2 For a discussion of this see Findlay, M. (1999) The Globalisation of Crime, Cambridge: Cambridge University Press.

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