Academic journal article Duke Journal of Comparative & International Law

Comparative Criminal Justice: An Institutional Approach

Academic journal article Duke Journal of Comparative & International Law

Comparative Criminal Justice: An Institutional Approach

Article excerpt

TABLE OF CONTENTS  INTRODUCTION I. THE CONDITIONS OF RESPONSIBILITY        A. Ideas        B. Interests        C. Institutions II. THE SHIFTING ALIGNMENT OF IDEAS OF RESPONSIBILITY IN        THE VORTEX OF INTERESTS AND INSTITUTIONS: A THESIS III. DEVELOPING AND TESTING HYPOTHESES ABOUT WHAT        DRIVES PATTERNS OF CRIMINAL RESPONSIBILITY IV. TESTING THE THESIS: THE VALUE OF COMPARATIVE        ANALYSIS 

INTRODUCTION

There is a rich tradition of scholarship in the areas of comparative criminal law, comparative criminal procedure, and comparative criminal justice policy and practice. (1) But these literatures do not always speak to one another, and they are unevenly related to comparative literature in the social sciences. This lecture, in memory of Herbert L. Bernstein, makes a case for studying comparative criminal law and criminal justice with close reference to the distinctive cultural contexts and the particular institutional settings in which rules and policies are developed and implemented in different countries. Accordingly, both historical and political-economic approaches are worthy of further development in this field and complement the ambitions of the comparative method. Conversely, the comparative method offers the most promising means of testing general hypotheses emerging from historical and socio-legal studies.

In a lecture devoted to comparative law, the area of criminal justice is, today, a highly apposite focus. Notable shifts in many parts of the world since the 1970s in the boundaries of criminalization and in the scope of punishment and changes in the procedural protections surrounding the application of nation states' criminalizing and penal powers (2) speak to some very basic legal ideals: notably to the quality of the rule of law and to how completely the values embodied in its tenets about the role of law in mediating the relationship between individuals, groups, and the state are realized. Increasingly, developments are also observable at a transnational level, as supranational political and legal orders move into the business of criminalizing and sanctioning states, corporations, and individuals.

But can comparative scholarship systematically shed light on criminal law and criminalization in late modern societies? Or does national and regional variation and variation across time and institutional levels rule out a more synthetic or general project? As conceptions of crime and ideals of legality are necessarily inflected by their specific origins in continental European and Anglo-Saxon legal and political traditions, respectively, do they invite a more particularistic treatment?

In building a case for an institutional approach to comparative legal scholarship, I focus on the issue of criminal responsibility. My aim is to provide an overview of the idea of responsibility in criminal law and its development over time in English criminal law and to sketch a hypothesis about what drives that development. Additionally, by applying a socio- legal methodology to the analysis of one concept in a particular system over time, I aim to provide a case study of methodology in legal scholarship more generally. I argue that this method is capable of extension to a comparative context and also that the thesis developed in my overview of English criminal law could most effectively be tested by subjecting it to critical comparative examination. In developing this method, I attempt to escape the narrowness of doctrinal scholarship by aligning myself with a long line of traditions that resist the idea of legal scholarship as autonomous and that insist on the importance of studying law and legal practices in a social, historical, and institutional context: the Process School in the United States, Law and Society and socio-legal scholarship, and critical legal scholarship. Equally, however, I avoid several unhelpful oppositions that have sometimes characterized critical or socio-legal, cross-disciplinary studies of law by acknowledging a concern with agency and structure, focusing on cultural and material forces as important factors in the explanation of how law evolves and works, exploring law's autonomy while also attending to its heteronomy, and recognizing the importance of intellectual and material history for explaining the evolution of law. …

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