DOCSLIB.ORG

LAW1111 Monash Notes

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
LAW1111 Monash Notes Introduction to Law Definitions Common law = the law made by judges in the exercise of both common law and equitable jurisdiction Statute law = the law made by the Commonwealth, State and Territory Parliaments Equity = equity in human transactions is that which is founded on justice, honesty and right Parliamentary sovereignty = parliament has the right to make, amend or repeal any law—within the limits of the Constitution = Parliament cannot make a law that a future parliament cannot change = parliament takes priority over the executive and judicial arms of government Responsible government = parliamentary accountability = responsive to public opinion Alternative Dispute Resolution / Non-Adversarial Justice = the ways in which disputes are resolved without litigation = negotiation, arbitration, or mediation Law reports = published volumes of the decisions of courts = widen the base of legal knowledge and to prevent two differing decisions on identical facts The crown = the Queen of the UK Legal aid = legal assistance provided by the government = provide vulnerable and disadvantaged Australians with access to justice Judicial independence = separation of powers doctrine = in interpreting and applying the law, judicial officers act independently and without interference from the parliament or the executive Theories of Law Jurisprudence = the study, knowledge or science of law Natural Law Theory = our laws should be based on morality, goodness, and what is inherently correct Legal Positivism = law is a human creation = based on a norm = expressed by a sovereign (aka the Command Theory) Feminist Jurisprudence = male dominance is embodied in law Economic Analysis Theory = if we want to maximise our satisfaction, we will attempt to do so via the simplest and most effective solution = economy ought to guide the law Critical legal theory = law and politics are mutually intertwined = law serves the interests of the powerful The Legal Profession Legal Practitioner = holds a current practicing certificate Barrister = advocacy = bound by the Conduct Barristers’ Rules 2015 = e.g., one must become a member of the Victorian Bar to practice (pass exam, complete Reader’s course, serve pupillage) Solicitor = general advice, some advocacy in lower courts, bound by the Legal Prof Uniform Law Application Act 2014 Ethical Approaches Kantian/deontological = Immanuel Kant = one must follow the law, regardless of the outcome Consequential/utilitarian = Jeremy Bentham = maximising the public good Virtue ethics = If the actor is good, the act is too = judges a person by his/her character rather than an action Law Systems Common Law System Civil Law System - Based on precedent - Based on codes which distinguish between different categories - Adversarial procedures (role of of law: substantive law establishes which acts are subject to the judge is to preside, burden criminal or civil prosecution, procedural law establishes how to of proof is on the crown, determine whether a particular action constitutes a criminal act, accused has many rights (e.g., and penal law establishes the appropriate penalty to remain silent) - Inquisitorial procedures (judge can ask questions, burden of - Rights for the accused proof may lie on the accused, accused has limited rights) - One cont. hearing - Aspires to deliver justice - Incorporates judge-made law - Hearing at various stages - UK, Aus, NZ, India - Portugal, Spain, France Development of the common law system o In 1066, William the Duke of Normandy conquers England, introducing feudalism (a hierarchical system of social and political organisation based upon land ownership with the Crown at the top) → royal rulings replace local customary laws → system of courts estab . First = the Curia Regis/Kings Court/Kings Council = the Kings advisory body Next = divided into the Court of the Kings Bench, the Court of Exchequer and the Court of Common Pleas ˙ The courts struggled to manage the volume of disputes → introduced the writ system = complainants applied to the court for the most applicable writ to be sent to the wrongdoer, which ordered him (under royal authority) to attend a royal court = application; to sue, the plaintiff must estab a ‘cause of action’ o In the 12th century, King Henry II estab a system to resolve land disputes using juries (comprised of 12 free men who were charged with uncovering the facts of the case on their own) → in 1215, trial by jury became a fairly explicit right in the Magna Carta o In the 15th century, increased complaints of injustice in the courts led to the creation of the Court of Chancery = the chancellors were trained as priests = they grounded their judgements in Christian precepts = the body of law was applied according to the notion of fairness = equity . The chancellors and the common law judges were rivals → in the early 1600s, King James recommended that in the case of conflict, equity should prevail → in 1873, the Judicature Act provided that the courts of common law and those of equity should be merged Development of the civil law system o Roots are in Roman law = origins are found in the compilation of Roman law commissioned by Emperor Justinian (i.e., Corpus Juris Civilis) in the 6th century CE → roman law ceased in the Dark Ages (when Roman Empire declined) but re-emerged in 11th century Italy → principles of Roman law adapted to contemporary needs in Europe e.g., the Code Napoleon of 1804 (France’s Civil Code) Development of Modern Constitutionalism In 1215, a group of nobles forced King John to sign the Magna Carta (63 clauses) which restricted the King’s power (e.g., could only appoint justices and sheriffs who were learned in law, could not deny a person’s right to justice) In 1265, the first assembly was summoned (i.e., Parliament) by the noble, Simon de Montfort = included the nobility, senior churchmen, two knights from each county and two burgesses (officials) from each of the major towns o Same scheme adopted by King Edward I in 1295 = known as the Model parliament Edward III came to the throne in 1327, and from that point the representatives of the counties (knights of the shire) and of the towns (burgesses) became a permanent part of Parliament o After 1332 they sat together in one chamber and were known as the House of Commons In 1414, the Commons successfully insisted to Henry V that the King and Lords should not change the wording of any of the Bills submitted by the Commons without its agreement and that no Bill should become an Act (that is, become statute), without their assent In 1534, when the Pope refused to approve the annulment of King Henry V’s marriage, Henry established the Church of England → Henry agreed to grant parliament greater involvement to secure their cooperation In 1607, the Case of Prohibitions del Roy dictated that the King could no longer be personally involved in common law courts = wrested supremacy from the King in favour of the courts = confirmed the sovereignty of parliament In 1611, the Case of Proclamations dictated that without the approval of Parliament, the King did not have the authority to change any part of common law or to create, by his proclamation, an offence that had not been an offence before In 1646, parliamentary forces defeated the royalists → the monarchy and House of Lords were abolished, and the House of Commons was dismissed → however, in 1660, Parliament invited Charles II to assume the throne In 1688, the Glorious Revolution saw the shift from an absolute monarchy to a constitutional monarchy In 1689, the Bill of Rights dictated that parliament was to be summoned regularly and that the Crown had no power to suspend the operation of law In 1701, the Act of Settlement dictated security of tenure for judges (previously, they had served at the King’s pleasure = susceptible to pressure) Constitutional Principles Rule of law = every person is subject to the laws of the land regardless of their status = it requires measures to ensure adherence to the principles of supremacy of the law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness, and procedural and legal transparency o Separation of powers = in order to prevent oppressive government, the three powers of government should be held by separate bodies— Parliament (makes the laws), the Executive (administers the laws) and the Judiciary (adjudicates on the laws) —which can act as checks and balances on each other = the parliament MAKES the laws, the executive ADMINISTERS the laws, and the judiciary ADJUDICATES on the laws Types of Law Criminal Law Civil Law - Wrongs against the community - Private matters - Standard of proof = beyond - Standard of proof = preponderance of the evidence/balance of reasonable doubt probabilities (the case that is the more probable should - Burden of proof = rests with the succeed) State - Burden of proof = rests with the plaintiff The Australian Legal System Introduction to the Australian Legal System Arrival of Common Law in Australia In 1717, the Transportation Act was passed, establishing a regulated system to transport criminals to colonies In 1770, Captain Cook discovers Australia In 1788, the First Fleet of convicts arrived in NSW → Australia deemed to have been settled (international law dictated that there were 3 means to acquire new territory = conquest, settlement, cession) as was considered uninhabited = Terra Nullius; land belonging to
Load more

Recommended publications
  • Retribution in a Modern Penal Law: the Principle of Aggravated Harm
    Buffalo Law Review Volume 25 Number 1 Article 2 10-1-1975 Retribution in a Modern Penal Law: The Principle of Aggravated Harm Ronald J. Allen University at Buffalo School of Law Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview Part of the Criminal Law Commons, Criminology and Criminal Justice Commons, Legal Theory Commons, and the Legislation Commons Recommended Citation Ronald J. Allen, Retribution in a Modern Penal Law: The Principle of Aggravated Harm, 25 Buff. L. Rev. 1 (1975). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol25/iss1/2 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact [email protected]. RETRIBUTION IN A MODERN PENAL LAW: THE PRINCIPLE OF AGGRAVATED HARM RoNALD J. ALLEN* Surely to think of the apt expression of feeling-even if we call it moral indignation rather than revenge-as the ultimate justification of punishment is to subordinate what is primary to what is ancillary. We do not live in society in order to condemn, though we may con- demn in order to live.' Thus the old Gentleman ended his Harangue. The... [Legislature] heard it, and approved the Doctrine and immediately practised the 2 contrary,just as if it had been a common Sermon .... I O nSeptember 1, 1967, in the State of New York, the "first major and comprehensive revision of the Penal Law in the State of New York since 1881"s became effective.4 While much has been written of the revised Penal Law,5 one important aspect of it has received little *Assistant Professor of Law, Faculty of Law and Jurisprudence, State University of New York at Buffalo; B.S., Marshall University, 1970; J.D., University of Michigan, 1973.
    [Show full text]
  • Dutch Influences on Law and Governance in New York
    DUTCH INFLUENCES 12/12/2018 10:05 AM ARTICLES DUTCH INFLUENCES ON LAW AND GOVERNANCE IN NEW YORK *Albert Rosenblatt When we talk about Dutch influences on New York we might begin with a threshold question: What brought the Dutch here and how did those beginnings transform a wilderness into the greatest commercial center in the world? It began with spices and beaver skins. This is not about what kind of seasoning goes into a great soup, or about European wearing apparel. But spices and beaver hats are a good starting point when we consider how and why settlers came to New York—or more accurately—New Netherland and New Amsterdam.1 They came, about four hundred years ago, and it was the Dutch who brought European culture here.2 I would like to spend some time on these origins and their influence upon us in law and culture. In the 17th century, several European powers, among them England, Spain, and the Netherlands, were competing for commercial markets, including the far-east.3 From New York’s perspective, the pivotal event was Henry Hudson’s voyage, when he sailed from Holland on the Halve Maen, and eventually encountered the river that now bears his name.4 Hudson did not plan to come here.5 He was hired by the Dutch * Hon. Albert Rosenblatt, former Judge of the New York Court of Appeals, is currently teaching at NYU School of Law. 1 See COREY SANDLER, HENRY HUDSON: DREAMS AND OBSESSION 18–19 (2007); ADRIAEN VAN DER DONCK, A DESCRIPTION OF NEW NETHERLAND 140 (Charles T.
    [Show full text]
  • Accountability of Law Enforcement Officers in the Use of Deadly Force
    UCLA National Black Law Journal Title Accountability of Law Enforcement Officers in the use of Deadly Force Permalink https://escholarship.org/uc/item/4vz3x42d Journal National Black Law Journal, 7(2) ISSN 0896-0194 Author Harper, Robert Berkley Publication Date 1981 Peer reviewed eScholarship.org Powered by the California Digital Library University of California ACCOUNTABILITY OF LAW ENFORCEMENT OFFICERS IN THE USE OF DEADLY FORCE Robert Berkley Harper* I. INTRODUCTION The importance of law enforcement officers' in today's society is with- out question. It is their unique responsibility to initiate the criminal justice process, 2 as well as to carry-out a myriad of services that benefit society. The majority of law enforcement officers in this country are professional, dedicated individuals who execute their sworn duties in a responsible and judicious manner. Notwithstanding the officers' worth and credibility, a need for accountability exists, as it does within all organizations and agen- cies in both the public and private sectors of our nation. Accountability is of special importance in situations where society permits a class of people to carry deadly weapons to be used against other citizens, since a potential abuse of this granted authority may result. To minimize this potential, the conditions under which this class may act must be strictly controlled. Ac- countability insures that law enforcement officers and agencies function in an effective manner without abuse to the citizenry.3 In recent years interest and concern has heightened in this country con- cerning the death penalty for convicted murderers, yet there has been little interest surrounding the most frequent means by which the states take a life.
    [Show full text]
  • COLLECTION of EUROPEAN PENAL CODES and the STUDY of COMPARATIVE LAW Marc Ancel T
    University of Pennsylvania Law Review FOUNDED 1852 Formerly American Law Register VOL. 106 JANUARY, 1958 No. 3 THE COLLECTION OF EUROPEAN PENAL CODES AND THE STUDY OF COMPARATIVE LAW Marc Ancel t FOREWORD by Louis B. Schwartz t The essay below was written by M. Marc Ancel as an intro- duction to the four-volume compilation of the penal codes currently in force in Europe, edited by himself and Mlle. Yvonne Marx.' Two of the projected four volumes have now appeared, covering in alpha- betical order, the codes of countries from Germany (Allemand) to Greenland. The project is of extraordinary interest and usefulness, since a French version of codes which would otherwise be available only in Swedish, Greek, Russian, etc., makes them much more acces- sible to Americans. But the enterprise would not be as valuable as it is without M. Ancel's analysis of the great tides of thought which, in their ebb and flow, have carried the penal law first in one direction, then almost in the opposite direction. M. Ancel's essay calls for a foreword for several reasons. To begin with, he had a foreword of his own which is here omitted because t Conseiller a la Cour de Cassation (Justice of the French Supreme Court, civil branch). Formerly Editor-in-Chief, International Review of Comparative Law; Sec- retary General, Institute of Comparative Law of the University of Paris; Secretary General, Society of Comparative Legislation. $ Professor of Law, University of Pennsylvania Law School. 1. LEs CODES PENAUX EuRoPEENs (1956) (published by the Centre Frangais de Droit Compare).
    [Show full text]
  • Law and Belief in Three Revolutions
    Valparaiso University Law Review Volume 18 Number 3 Spring 1984 pp.569-629 Spring 1984 Law and Belief in Three Revolutions Harold J. Berman Follow this and additional works at: https://scholar.valpo.edu/vulr Part of the Law Commons Recommended Citation Harold J. Berman, Law and Belief in Three Revolutions, 18 Val. U. L. Rev. 569 (1984). Available at: https://scholar.valpo.edu/vulr/vol18/iss3/1 This Seegers Lecture is brought to you for free and open access by the Valparaiso University Law School at ValpoScholar. It has been accepted for inclusion in Valparaiso University Law Review by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff member at [email protected]. Berman: Law and Belief in Three Revolutions ValparaisoUniversity Law Review Volume 18 Summer 1984 Number 3 LAW AND BELIEF IN THREE REVOLUTIONS* HAROLD J. BERMAN** I. GENERAL INTRODUCTION ........................... 569 II. THE LUTHERAN REFORMATION AND GERMAN LAW . 572 III. THE PURITAN REVOLUTION AND ENGLISH LAW .... 590 IV. THE ENLIGHTENMENT, THE FRENCH REVOLUTION, AND THE NAPOLEONIC CODES .......................... 613 I. GENERAL INTRODUCTION Periodically in the history of the West there have occurred revolutionary changes in the predominant system of beliefs held by the people of a given country or countries. Thus in the early sixteenth century the rise of Protestantism, especially in its Lutheran form, reflected a major shift in the belief system of most persons-not only of Protestants -living in the numerous polities that then made up the German Empire. Some four generations later, in the mid-seventeenth century, various Calvinist and neo-Calvinist beliefs became predomi- nant in English social life, espoused not only by Puritans and other so-called Non-Conformists but also by many who remained loyal to Anglicanism.
    [Show full text]
  • Mapping Criminal Law: Blackstone and the Categories of English
    Mapping Criminal Law: Blackstone and the Categories of English Jurisprudence* David Lieberman [forthcoming in Norma Landau (ed.), Law, Crime and English Society, 1660-1840 (Cambridge University Press)] I. The Map of English Law John Beattie’s contributions to the historical study of crime and criminal justice have been so formative and so distinguished that it seems almost presumptuous for someone not engaged in this specific field of inquiry to attempt any characterization of his achievement. Still, for the purposes of this essay it is useful to observe some of the important general lessons of his researches for understanding legal change in eighteenth -century England. Beattie, himself, concluded his magisterial account of Crime and the Courts in England, by emphasizing the prominence of this particular theme. During the period 1660-1800, ‘significant changes’ occurred throughout England’s system of criminal justice: ‘in the criminal law, in criminal procedure, in prisons, and in punishment’; and cumulatively these ‘transformed the system of judicial administration’.1 Interpreting this transformation required not only the historical recovery of patterns of crime and their prosecution, but even more a reconstruction of the technical administrative structures and legal processes through which the criminal law was enforced. The transformation of criminal justice, as charted by Beattie, did not occur without public debate and controversy; and on infrequent occasion, as in the (2) case of the 1718 Transportati on Act, it depended critically on parliamentary intervention. But in contrast to the more immediately visible statutory law reforms of the Victorian era, legal change in eighteenth century rarely involved any direct or sweeping dismantling of historical practices and forms.
    [Show full text]
  • 1 Slave Codes and Penal Laws in Eighteenth-Century Jamaica and Ireland
    ‘Slave codes and penal laws’ Slave codes and penal laws in eighteenth-century Jamaica and Ireland: a comparative and historiographical survey* During the long eighteenth century, a period stretching roughly between 1660 and 1840, the British elites of both Ireland and Jamaica faced very similar problems of social control. Both were small and embattled minorities within a society made up mainly of Catholic Irish in the one place and black slaves in the other, who were in general overwhelmingly hostile to elites and unwilling to accept their subordinate status. In Ireland between about 1695 and 1719, the Protestant Ascendancy in the Irish Parliament created a body of laws known as the ‘Penal Laws’ intended to regulate the behaviour of the Catholic Irish population, and to destroy its religious, political, social and economic power. In Jamaica and the West Indies, the planters used colonial assemblies to construct a body of laws known as the slave code, which defined the nature of slavery, the position of slaves, and the power of their masters. Both were comprehensive systems of social control that lasted largely unchanged until they were swept away between 1772 and 1795 in Ireland, and between about 1823 and 1838 in Jamaica and the West Indies. Both have also been the subject of intense reassessment over the past five decades, but have either the codes themselves * I am grateful to James Robertson, David Hayton, Trevor Burnard, Patrick Walsh and the reviewers at the Jamaican Historical Review for their comments, feedback and advice. This article has benefitted from discussions at the conferences on ‘Ireland and the Caribbean in the age of empire’ at Trinity College Dublin in November 2016 and ‘Ireland, the British Empire and the Caribbean’ at University College Dublin in December 2017.
    [Show full text]
  • Danish Law, Part II
    University of Miami Law Review Volume 5 Number 2 Article 3 2-1-1951 Danish Law, Part II Lester B. Orfield Follow this and additional works at: https://repository.law.miami.edu/umlr Recommended Citation Lester B. Orfield, Danish Law, Part II, 5 U. Miami L. Rev. 197 (1951) Available at: https://repository.law.miami.edu/umlr/vol5/iss2/3 This Article is brought to you for free and open access by the Journals at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in University of Miami Law Review by an authorized editor of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. DANISH LAW DANISH LAW LESTER B. ORFIELD PART II* LOCAL GOVERNMENT In 1841 local government was reformed by introducing parish councils to which the peasants elected some representatives. 233 In turn the parish councils elected members of the county councils. The pastors were no longer to be chairmen of the parish councils, but continued to be members ex officio. The right to vote was extended to owners of but 1.4 acres. The councils were created to deal with school matters and poor relief; but road maintenance, public health, business and industrial licenses, and liquor licenses were also within their province. The right to vote in local elections was long narrowly restricted. Under legislation of 1837 the six largest cities other than Copenhagen chose coun- cilmen on a property basis permitting only seven per cent of the population to vote. Early in the nineteenth century rural communities began to vote for poor law and school officials.
    [Show full text]
  • A Comparative Analysis of the New Penal Laws of New York and Michigan
    Buffalo Law Review Volume 18 Number 2 Symposium: New York's New Penal Article 3 Law 1-1-1969 A Comparative Analysis of the New Penal Laws of New York and Michigan B. J. George Jr. Practising Law Institute Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview Part of the Comparative and Foreign Law Commons, and the Criminal Law Commons Recommended Citation B. J. George Jr., A Comparative Analysis of the New Penal Laws of New York and Michigan, 18 Buff. L. Rev. 233 (1969). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol18/iss2/3 This Symposium Article is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact [email protected]. A COMPARATIVE ANALYSIS OF THE NEW PENAL LAWS OF NEW YORK AND MICHIGAN B. J. GEORGE, JR.* F imitation is the sincerest form of flattery, then the drafters of the New York Penal Law should feel flattered, at least by those responsible for pre- paring the proposed Michigan Criminal Code.1 A comparison of the New York statute with the Michigan draft shows substantial similarities in approach, or- ganization and technical terminology, a fact regularly acknowledged in the com- mentaries to the Michigan provisions. There is in fact historical precedent for this. Much early Michigan legisla- tion in the 1840's and 1850's was adapted from the then-new New York codes, and New York decisions were relied on in interpreting the new legislation.
    [Show full text]
  • The Creation and Evolution of Criminal Law in Colonial and Post-Colonial Societies
    Crime, Histoire & Sociétés / Crime, History & Societies Vol. 3, n°1 | 1999 Varia The creation and evolution of criminal law in colonial and post-colonial societies Leslie Sebba Electronic version URL: http://journals.openedition.org/chs/936 DOI: 10.4000/chs.936 ISSN: 1663-4837 Publisher Librairie Droz Printed version Date of publication: 1 January 1999 Number of pages: 71-91 ISBN: 2-600-00356-8 ISSN: 1422-0857 Electronic reference Leslie Sebba, « The creation and evolution of criminal law in colonial and post-colonial societies », Crime, Histoire & Sociétés / Crime, History & Societies [Online], Vol. 3, n°1 | 1999, Online since 03 April 2009, connection on 10 December 2020. URL : http://journals.openedition.org/chs/936 ; DOI : https:// doi.org/10.4000/chs.936 © Droz The creation and evolution of criminal law in colonial and post-colonial societies Leslie Sebba1 Theoretical models of the legislative process are explored in order to seek an explanation of the phenomenon whereby post-colonial democracies frequently retain the legislation adopted by the imperial predecessor. This even applies to criminal codes, in spite of their presumed role in the controlling of colonial populations. A possible explanation is proffered in terms of a bureaucratic model of legislation, which seems to fit both colonial powers and some democracies. Under this model, the character and content of the legislation may depend as much upon the personalities involved in its drafting and promotion, as upon political or structural factors. Cet article examine différents modèles théoriques relatifs au processus législatif afin de rechercher l'explication du fait que les démocraties post- coloniales conservent fréquemment la législation édictée par le pouvoir colonial antérieur.
    [Show full text]
  • The Modern Common Law of Crime
    Journal of Criminal Law and Criminology Volume 111 Issue 2 Article 2 Spring 2021 The Modern Common Law of Crime Robert Leider Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons Recommended Citation Robert Leider, The Modern Common Law of Crime, 111 J. Crim. L. & Criminology 407 (2021). This Article is brought to you for free and open access by Northwestern Pritzker School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern Pritzker School of Law Scholarly Commons. 0091-4169/21/11102-0407 THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 111, No. 2 Copyright © 2021 by Robert Leider Printed in U.S.A. THE MODERN COMMON LAW OF CRIME ROBERT LEIDER* Two visions of American criminal law have emerged. The first vision is that criminal law is statutory and posits that legislatures, not courts, draft substantive criminal law. The second vision, like the first, begins with legislative supremacy, but it ends with democratic dysfunction. On this view, while contemporary American criminal law is statutory in theory, in practice, American legislatures badly draft and maintain criminal codes. This effectively delegates the “real” drafting of criminal law to prosecutors, who form the law through their charging decisions. This Article offers a third vision: that modern American criminal law is primarily conventional. That is, much of our criminal law is defined by unwritten common-law-like norms that are widely acknowledged and generally respected, and yet are not recognized as formal law enforceable in courts.
    [Show full text]
  • PUNISHING the CRIMINAL CORPSE, 1700-1840 Aggravated Forms of the Death Penalty in England
    palgrave historical studies in the criminal corpse and its afterlife PUNISHING THE CRIMINAL CORPSE, 1700-1840 Aggravated Forms of the Death Penalty in England Peter King Palgrave Historical Studies in the Criminal Corpse and its Afterlife Series Editors Owen Davies School of Humanities University of Hertfordshire Hatfield, UK Elizabeth T. Hurren School of Historical Studies University of Leicester Leicester, UK Sarah Tarlow History and Archaeology University of Leicester Leicester, UK This limited, finite series is based on the substantive outputs from a major, multi-disciplinary research project funded by the Wellcome Trust, inves- tigating the meanings, treatment, and uses of the criminal corpse in Britain. It is a vehicle for methodological and substantive advances in approaches to the wider history of the body. Focussing on the period between the late seventeenth and the mid-nineteenth centuries as a crucial period in the formation and transformation of beliefs about the body, the series explores how the criminal body had a prominent presence in popular culture as well as science, civic life and medico-legal activity. It is historically significant as the site of overlapping and sometimes contradictory understandings between scientific anatomy, criminal justice, popular medicine, and social geography. More information about this series at http://www.springer.com/series/14694 Peter King Punishing the Criminal Corpse, 1700–1840 Aggravated Forms of the Death Penalty in England Peter King University of Leicester Leicester, UK Palgrave Historical Studies in the Criminal Corpse and its Afterlife ISBN 978-1-137-51360-1 ISBN 978-1-137-51361-8 (eBook) DOI 10.1057/978-1-137-51361-8 Library of Congress Control Number: 2017944586 © The Editor(s) (if applicable) and The Author(s) 2017.
    [Show full text]