Reconstructing criminal law: Text and materials

Citation

Lacey, N., Wells, C., & Quick, O. (2010). Reconstructing criminal law: Text and materials (4th ed.). Cambridge University Press.

Chapter Summary

Section I: Approaching Criminal Law

1. Images of Criminal Law
   • Discusses theories, history, sociology, and philosophy behind criminal law.
   • Explains and justifies criminal law, and explores its power.
2. Criminal Laws in Context
   • Explores the relationship between social norms and criminal law.
   • Examines the process of shaping criminal law and constructing crime through institutions, investigation, prosecution, trials, and sentencing.
3. Foundations of Criminal Law
   • Focuses on due process and human rights, exploring legal ideology, the rule of law, and the presumption of innocence.
   • Delves into concepts such as actus reus, mens rea, and their combinations, exemptions, justifications, excuses, inchoate offenses, and participatory liability.

Section II: Law, Order, and Security

4. Social and Political Constructions of Disorder
   • Discusses various conceptions of disorder, legitimate protest, moral panics, and problem populations.
5. Securing Order: Pre-emptive Measures
   • Examines preventive justice, breach of peace, arrest and binding over, football banning orders, and anti-social behavior orders.
6. Public Order: Control Mechanisms
   • Discusses the control of mass assemblies, including marches, demonstrations, trespassing, riot, violent disorder, affray, harassment offenses, and hate crimes.
7. Criminal Law and Justice: Emerging Themes
   • Covers themes such as territory, technology, youth, public order, criminal law, and process.

Section III: Interpersonal Violence; Drug and Alcohol Abuse; Offense Preparation and Participation

8. Offenses Against the Person
   • Covers assault, battery, bodily harm, boundary issues like psychiatric harm, consent, disease transmission, crime patterns, charging practice, and reform.
9. Drug and Alcohol Abuse: Legal Constructions of a Social Problem
   • Discusses drug and alcohol control, prohibition, regulation, intoxication, and criminal responsibility.
10. Offense Preparation and Participation
    • Covers attempt, conspiracy, assisting, encouraging, inchoate liability, aiding, abetting, and joint enterprise.

Section IV: Property and Propriety

11. Defining and Defending Private Property
    • Explores conceptions of property, shoplifting, white-collar crime, fraud, and burglary.
12. Constructing Property in Criminal Law
    • Discusses theft, fraud, conspiracy to defraud, burglary, criminal damage, duress, necessity, and respect for property.
13. Property Rights and Criminal Enforcement
    • Covers crime prevention, situational prevention, diversifying control, money laundering, and enforcement patterns.

Section V: Regulating Sexuality and Bodily Autonomy: A Crisis of Trust and Intimacy?

14. The Social Construction of Sexuality and Bodily Autonomy
    • Explores attitudes towards sexuality, autonomy, sexual freedom, and discipline.
15. Sexual Violence
    • Discusses sexual violence, investigating and prosecuting rape, penile penetration, rape and marriage, consent, evidence, and punishment.
16. Regulating Sexuality
    • Covers forbidden degrees, ages of consent, homosexuality, child sexual abuse, incest, prostitution, and pornography.
17. Criminalizing Healthcare Choices
    • Explores reproductive crimes, contraception, abortion, surrogacy, fertilization, cloning, euthanasia, consent, necessity, and assisted suicide.

Section VI: Making a Killing: Conceptions of Violence

18. The Social Construction of Violence and Personal Harm
    • Discusses conceptions of violence and domestic violence.
19. The Criminal Regulation of Public Safety
    • Covers road traffic, work hazards, regulatory offenses, strict liability, enforcement models, and corporate liability for crime.
20. Homicide: Boundary Issues
    • Explores the morality of killing, medical non-treatment, definitions of death, and the act of causing death.
21. Murder and Manslaughter
    • Discusses penalties, mental elements, reform proposals, self-defense, and partial defenses.

This textbook provides a comprehensive, thematic approach to criminal law, integrating case law and contemporary issues to illuminate the subject for both undergraduate and postgraduate students.

Key Concepts

1. Theories of Criminal Law
   • Historical Theories: Examine how criminal law has evolved over time, influenced by changes in societal values and norms.
   • Sociological Theories: Focus on how social structures and relationships impact criminal behavior and law enforcement.
   • Philosophical Theories: Address fundamental questions about the nature and purpose of criminal law, such as the justification of punishment and the moral basis for criminal sanctions.
2. Social Norms and Criminal Law
   • Interplay between Social Norms and Law: How societal expectations shape and are shaped by criminal law.
   • Deviance and Crime: Understanding the social construction of deviance and its criminalization.
3. Foundations of Criminal Law
   • Actus Reus: The physical act of committing a crime.
   • Mens Rea: The mental state or intent to commit a crime.
   • Combination of Actus Reus and Mens Rea: The necessity of proving both elements to establish criminal liability.
4. Human Rights and Due Process
   • Rule of Law: The principle that all individuals and institutions are subject to and accountable under the law.
   • Presumption of Innocence: The concept that a defendant is considered innocent until proven guilty.
   • Miscarriages of Justice: Instances where the legal system fails, resulting in the conviction and punishment of innocent people.
5. Public Order and Security
   • Preemptive Measures: Legal strategies to prevent disorder, such as anti-social behavior orders and football banning orders.
   • Public Order Offenses: Laws designed to maintain public peace and safety, including regulations on protests, riots, and hate crimes.
6. Interpersonal Violence and Harm
   • Assault and Battery: Legal definitions and distinctions between various forms of physical violence.
   • Offenses Against the Person: Legal frameworks addressing bodily harm, consent, and psychiatric harm.
7. Drug and Alcohol Abuse
   • Legal Responses to Substance Abuse: Policies of prohibition and regulation, and the impact of intoxication on criminal responsibility.
8. Offense Preparation and Participation
   • Inchoate Offenses: Crimes involving preparation for committing other offenses, such as attempts and conspiracies.
   • Participatory Liability: Legal principles governing aiding, abetting, and joint enterprise.
9. Property Crimes
   • Theft and Fraud: Legal definitions, historical development, and contemporary issues in property crimes.
   • Burglary and Criminal Damage: Specific offenses related to unauthorized entry and destruction of property.
10. Regulating Sexuality and Bodily Autonomy
    • Sexual Offenses: Laws addressing rape, consent, and sexual violence.
    • Healthcare Choices: Legal issues surrounding reproductive rights, euthanasia, and assisted suicide.
11. Corporate and Regulatory Crimes
    • Corporate Liability: Legal doctrines holding corporations accountable for criminal activities.
    • Regulatory Offenses: Laws regulating public safety, including road traffic and workplace hazards.
12. Homicide
    • Murder and Manslaughter: Legal distinctions between different types of homicide, penalties, and potential reforms.
    • Self-Defense and Partial Defenses: Circumstances under which killing may be legally justified or mitigated.

This section highlights the breadth and depth of topics covered in the textbook, focusing on key concepts that form the foundation of criminal law. The integration of historical, sociological, and philosophical perspectives provides a well-rounded understanding of the subject.

Critical Analysis

1. Theories of Criminal Law
   • Strengths and Weaknesses: Evaluate the explanatory power of various theoretical frameworks, including their ability to account for changes in legal practices and societal attitudes.
   • Interdisciplinary Approaches: Consider the value of incorporating insights from history, sociology, and philosophy into the study of criminal law.
2. Social Norms and Criminal Law
   • Normative Influence: Analyze the extent to which criminal law reflects or shapes societal norms and the implications for justice and social order.
   • Constructivist Perspectives: Critically examine the notion that crime is socially constructed, questioning the objectivity and fairness of legal definitions and classifications.
3. Foundations of Criminal Law
   • Actus Reus and Mens Rea: Discuss the challenges in proving the physical act and mental state in criminal cases, and the potential for wrongful convictions.
   • Human Rights and Due Process: Assess the effectiveness of legal protections for defendants, including the presumption of innocence and safeguards against miscarriages of justice.
4. Public Order and Security
   • Balancing Security and Liberty: Explore the tension between maintaining public order and protecting individual rights, particularly in the context of preemptive measures and public order offenses.
   • Impact of Legislation: Evaluate the effectiveness of laws like the Serious Crime Act 2007 and the Fraud Act 2006 in addressing contemporary challenges.
5. Interpersonal Violence and Harm
   • Efficacy of Legal Frameworks: Critique the adequacy of existing laws in addressing various forms of interpersonal violence, including emerging issues like disease transmission and psychiatric harm.
   • Consent in Criminal Law: Examine the complexities and controversies surrounding the concept of consent in offenses against the person.
6. Drug and Alcohol Abuse
   • Policy Effectiveness: Analyze the impact of prohibition and regulation policies on drug and alcohol abuse, and their implications for criminal responsibility.
   • Societal Impacts: Consider the broader social consequences of criminalizing substance abuse and the effectiveness of alternative approaches.
7. Offense Preparation and Participation
   • Legal Ambiguities: Discuss the difficulties in defining and prosecuting inchoate offenses and participatory liability, and the potential for injustice.
   • Patterns of Criminality: Evaluate how well the legal system addresses the complexities of modern criminal networks and organized crime.
8. Property Crimes
   • Conceptual Clarity: Critically assess the definitions and scope of property crimes like theft, fraud, and burglary, and their relevance in contemporary society.
   • Legal and Ethical Issues: Explore the ethical considerations in punishing property crimes, particularly in cases involving necessity or duress.
9. Regulating Sexuality and Bodily Autonomy
   • Legal Reforms: Analyze the impact of reforms in sexual offenses laws, particularly the Sexual Offenses Act 2003, on victims and defendants.
   • Healthcare and Autonomy: Critique the legal regulation of healthcare choices, including reproductive rights and euthanasia, from ethical and human rights perspectives.
10. Corporate and Regulatory Crimes
    • Corporate Accountability: Examine the challenges in holding corporations accountable for criminal activities and the effectiveness of current legal frameworks.
    • Regulatory Challenges: Discuss the difficulties in enforcing regulations related to public safety, and the balance between strict liability and due process.
11. Homicide
    • Legal Complexity: Evaluate the legal distinctions between murder and manslaughter, and the adequacy of current laws in addressing different types of homicide.
    • Reform Proposals: Consider proposed reforms for homicide laws, including the introduction of tiers for different levels of culpability and partial defenses.

Overall, this section of the analysis highlights the critical challenges and debates within the field of criminal law. It underscores the importance of continuously reassessing and reforming legal frameworks to ensure they remain just, effective, and relevant in addressing evolving societal issues.

Real-World Applications and Examples

1. Theories of Criminal Law
   • Historical Contexts: How changes in criminal law over time reflect shifts in societal values. For example, the evolution of laws regarding witchcraft in the 16th and 17th centuries compared to modern-day laws on cybercrime.
   • Sociological Implications: Understanding how social structures impact crime and law enforcement, such as the role of socioeconomic status in criminal behavior and the disproportionate incarceration rates among marginalized communities.
2. Social Norms and Criminal Law
   • Drug Legislation: The shift in societal attitudes towards drugs, from prohibitionist policies like the War on Drugs to more progressive approaches like the legalization of cannabis in various jurisdictions.
   • Public Order Laws: The impact of laws regulating public demonstrations, such as the policing of protests during the Occupy Wall Street movement or the Black Lives Matter protests.
3. Foundations of Criminal Law
   • Actus Reus and Mens Rea in High-Profile Cases: Cases like the trial of O.J. Simpson, where establishing the actus reus and mens rea was crucial in the legal arguments.
   • Miscarriages of Justice: Real-world examples such as the wrongful convictions in the cases of the Central Park Five and their subsequent exoneration, highlighting the importance of due process and the presumption of innocence.
4. Public Order and Security
   • Anti-Social Behaviour Orders (ASBOs): The use and effectiveness of ASBOs in the UK to address behaviors that do not necessarily constitute criminal offenses but are disruptive to the community.
   • Counter-Terrorism Measures: The balance between national security and civil liberties, illustrated by legislation such as the USA PATRIOT Act and its impact on surveillance and personal freedoms.
5. Interpersonal Violence and Harm
   • Domestic Violence Legislation: The implementation and effects of laws designed to protect victims of domestic violence, such as restraining orders and mandatory arrest policies.
   • Cyberbullying and Harassment: The legal challenges in addressing online harassment and the evolving jurisprudence in cases involving social media platforms.
6. Drug and Alcohol Abuse
   • Drug Courts: The establishment of drug courts as an alternative to traditional criminal justice approaches, focusing on rehabilitation rather than punishment for drug offenders.
   • Alcohol-Related Offenses: Laws and policies addressing drunk driving, including the use of breathalyzer tests and mandatory sentencing laws for repeat offenders.
7. Offense Preparation and Participation
   • Terrorism and Conspiracy Laws: The application of conspiracy laws in prosecuting terrorism-related offenses, such as the case of the “Toronto 18” in Canada.
   • Gang-Related Crimes: Legal strategies for addressing gang violence, including the use of racketeering charges under the RICO Act in the United States.
8. Property Crimes
   • White-Collar Crime: High-profile cases of corporate fraud, such as the Enron scandal and the prosecution of Bernie Madoff, illustrating the complexities of investigating and prosecuting financial crimes.
   • Burglary and Theft: Community policing strategies to reduce property crimes, such as neighborhood watch programs and the use of surveillance technology.
9. Regulating Sexuality and Bodily Autonomy
   • Sexual Offense Reforms: The impact of reforms in sexual offense laws on prosecution rates and victim support, exemplified by changes in the definition of consent and the handling of sexual assault cases on college campuses.
   • Reproductive Rights: Legal battles over abortion rights, such as the landmark Roe v. Wade case in the United States and subsequent state-level restrictions and challenges.
10. Corporate and Regulatory Crimes
    • Corporate Manslaughter: The prosecution of corporations for gross negligence resulting in death, such as the case of the Herald of Free Enterprise disaster and the subsequent Corporate Manslaughter and Corporate Homicide Act 2007 in the UK.
    • Environmental Crimes: The enforcement of environmental protection laws in cases like the Deepwater Horizon oil spill, highlighting corporate responsibility and regulatory challenges.
11. Homicide
    • Self-Defense Cases: Notable cases involving self-defense claims, such as the trial of George Zimmerman for the shooting of Trayvon Martin, and the legal debates surrounding “stand your ground” laws.
    • Medical Non-Treatment and End-of-Life Decisions: Cases like those of Terri Schiavo and Charlie Gard, which involve complex legal and ethical questions about the right to die and the definition of death.

Conclusion

“Reconstructing Criminal Law: Text and Materials” by Lacey, Wells, and Quick provides a comprehensive examination of criminal law through a thematic and contextual approach. By integrating theoretical perspectives, key concepts, critical analysis, and real-world applications, the textbook equips students with a deep understanding of the complexities and nuances of criminal law. This multifaceted approach not only enhances the academic study of criminal law but also prepares students to engage with contemporary legal challenges and debates in a meaningful way.