Toward a universal theory of criminal law: Rethinking the comparative and international project

Criminal Justice Ethics

Volumn 27, Issue 1, 2008, Pages 53-66

  Bronitt, Simon ^a  

^a AUSTRALIAN NATIONAL UNIVERSITY   (Australia)

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[No Author keywords available]

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EID: 79959706393     PISSN: 0731129X     EISSN: 19375948     Source Type: Journal    
DOI: 10.1080/0731129X.2008.9992228     Document Type: Article

References (111)

1. Paul Valéry, Poetry and Abstract Thought, trans. D. Folliot, in The Collected Works of Paul Valéry, ed. Jackson Mathews (Princeton, NJ: Princeton University Press, 1956), vol. 7: The Art of Poetry, 58.
2. George P. Fletcher, The Grammar of Criminal Law: American, Comparative, and nternational, vol. 1: Foundations (New York: Oxford University Press, 2007). [Bracketed page numbers in the text and notes refer to this volume.] The preface is fittingly titled Intellectual Journeys, vii-xxi, and provides a glimpse of the various fellowships in Europe and breadth of scholarly knowledge, which extends to Jewish law and the Rabbinic commentaries.
3. An example noted is the incompleteness of self-defense under international criminal law. In Fletcher's view, future doctrinal development will be a matter for scholarly, as much as case law and statutory development [110-11].
4. This trend is evident not only in non-U.S. journals, such as the British Criminal Law Review, but extends to U.S. law journals such as the Criminal Law Forum-An International Journal (established in 1990 and based at Rutgers University) and the more recent transformation of the Buffalo Criminal Law Review into the New Criminal Law Review-An International and Interdisciplinary Journal. The latter journal, under the editorship of Markus Dirk Dubber and Lindsay Farmer, aims to provide an examination of crime and punishment in domestic, transnational, and international contexts. An Australian example is the substantial chapter on International and Transnational Crime, which integrates international law and comparative law perspectives, in the author's own textbook: Simon Bronitt and Bernadette McSherry, Principles of Criminal Law, 2nd ed. (Sydney: LBC, 2005), chap. 15.
5. These themes are further explored in Stephen Bottomley and Simon Bronitt, Law in Context, 3rd ed. (Sydney: The Federation Press, 2006), chap. 14.
6. William Twining, Globalisation and Legal Theory (London: Butterworths, 2000), 221.
7. In Australia, the Rome Statute offenses have been enacted into federal criminal law: Criminal Code Act 1995 (C'th)-Ch 8.
8. Offences Against Humanity and Related Offences. These offences have non-geographical (that is, universal) jurisdiction.
9. See Bronitt and McSherry, Principles of Criminal Law, 860-71.
10. For an examination of the influence of the ECHR on Australian law by a justice of the High Court of Australia,
11. see Michael Kirby, The Australian Debt to the European Court of Human Rights, in Stephan Breitenmoser, Bernhard Ehrenzeller, Marco Sassoli, Walter Stoffel, and Beatrice Wagner Pfeifer (eds), Human Rights, Democracy and the Rule of Law-Liber Amicorum Luzius Wildhaber (Baden-Baden: Nomos, 2007), 391-410.
12. This is a process which has been greatly aided by increased global free availability of law in digital form. For an essay exploringthe forces shaping this global common law,
13. see Robin Cooke, The Road Ahead for the Common Law, International and Comparative Law Quarterly 53 (2004): 273-85.
14. Id., 273-74.
15. In a bizarre imperial inversion, the common law of England is becoming less English and will be subject to greater international influences. In that regard Lord Cooke predicts that Commonwealth law will become more important to the future development of English law!
16. The Supreme Court of Canada occupies a special place as persuasive in the doctrinal development of the common law in Australia. Though influential in the constitutional field, U.S. law has had a limited influence on doctrinal development in Australia. This is likely a reflection of the limited role that the U.S. Supreme Court plays in that nation's criminal field outside of criminal procedure. This is not only due to the limited scope of federal jurisdiction, but also because the U.S. Supreme Court acts as the court of final appeal in relation to the common law jurisdiction of each state. In Australia, by contrast, the High Court has recognized that, within its federal system, there is only one common law, namely the common law of Australia, which applies in each state but is not itself the creation of any state: Lipohar v. The Queen (1999) 200 CLR 485 at 505-510.
17. This unitary model of the common law has promoted a much higher degree of convergence between common law and statutory doctrines in Australia.
18. See Bronitt and McSherry, Principles of Criminal Law, 73-74.
19. See Justice Michael Kirby, The Australian Debt to the European Court of Human Rights, 400-402, discussing the development of the common law right to a fair trial in Dietrich v. The Queen (1992) 177 CLR 292.
20. The highpoint of this legal parochialism and resistance to the ECHR was R v. Khan (Sultan 1996), 3 All ER 289 at 301.
21. The House of Lords noted that although the ECHR could be considered for what it was worth in exercising the judicial discretion to exclude evidence on the grounds that it was improperly obtained, it had no more weight than a breach of domestic law, or for that matter a breach of any foreign law.
22. See generally, Ben Emmerson and Andrew Ashworth, Human Rights and Criminal Justice, 2nd ed. (London: Sweet and Maxwell, 2007).
23. The inter-relationship between normative and explanatory theorizing is explored in Bronitt and McSherry, Principles of Criminal Law, 6.
24. There are influential theorists in the U.S. who subscribe to this mission. For example, Michael Moore claims: The criminal law thus needs some structure if its codification is to be possible and if adjudication under such codes is to be non-arbitrary. More specifically, it needs some general doctrines-doctrines applying to all types of action prohibited by a criminal code-in order to avoid an ungodly repugnancy and a woeful incompleteness. Moore, Act and Crime (Oxford, UK: Oxford University Press, 1993), 4.
25. This includes a substantial body of scholarship by leading theorists of the criminal law including Nicola Lacey, Celia Wells, Lindsay Farmer, Antony Duff, Peter Alldridge, Jeremy Horder, and Alan Norrie. Their work is reviewed in Bronitt and McSherry, Principles of Criminal Law, 4-6 and 76-80.
26. Paul Robinson and John Darley, Justice, Liability and Blame (Boulder, CO: Westview, 1995).
27. The research done in the UK by Mitchell examined public attitudes to homicide. See Barry Mitchell, Further Evidence of the Relationship Between Legal and Public Opinion on the Law of Homicide Criminal Law Review (2000): 814-27.
28. The Law Commission also commissioned Mitchell to undertake further research on this topic; it was included in the Law Commission's Final Report 290: Partial Defences to Murder (London: HMSO, 2004), par. 2.19-2.35.
29. Responding to scholarly critique of constructive murder, many jurisdictions have abolished felony murder, including the UK in 1957.
30. Furthermore, see Fletcher, Grammar, 102-6 detailing the Canadian judicial decisions which declared the doctrine as contrary to the principle of fundamental justice in the Canadian Charter. The arguments that support felony murder relate to the importance of sending strong deterrent messages to individuals who cause death-albeit without an intention to kill or cause serious injury-in the course of committing other serious offenses. For an exploration of the normative arguments in favour of felony murder.
31. see Prue Bindon, The Case for Felony Murder, Flinders Journal of Law Reform 9, no. 2 (2006): 149-80, which notes that felony murder exists in all but one Australian state.
32. Andrew Ashworth, Criminal Law, Human Rights and Preventive Justice in Regulating Deviance: The Redirection of Criminalisation and the Futures of Criminal Law, ed. Bernadette McSherry, Alan Norrie, and Simon Bronitt (Oxford, UK: Hart Publishing, 2008, in press).
33. Some critical scholars, by contrast, argue that such deviation demonstrates the inherent lack of power of these principles or even masks or conceals abuse of power: see for example Mark Kelman, Interpretive Construction in the Substantive Criminal Law, Stanford Law Review 33 (1981): 591.
34. Andrew Ashworth, Principles of Criminal Law, 5th ed. (Oxford, UK: Oxford University Press, 2006), chap. 3.
35. Andrew Ashworth, Is the Criminal Law a Lost Cause? Law Quarterly Review 116 (2000): 225-6.
36. In the field of criminal law, as part of the Critical Legal Studies (CLS) Movement in the 1980s, Mark Kelman exposed through close textual analysis the internal politics of legal discourse: Interpretive Construction in the Substantive Criminal Law" Stanford Law Review 33 (1981): 591.
37. This internal or immanent critique unmasked the indeterminacy and contradictions of general principles in the criminal law. The weakness of the early CLS movement was its failure to develop an external critique, or to engage in normative reconstruction within the structure of law. As Nicola Lacey concludes, developing an internal critique requires engagement with a broader set of historical, political, and social questions about the conditions and existence and efficacy of particular doctrinal arrangements, Nicola Lacey, Legal Constructions of Crime in The Oxford Handbook of Criminology, ed. Mike Maguire, Rod Morgan and Robert Reiner, 3rd ed. (Oxford, UK: Oxford University Press, 2002), 277.
38. Oliver Wendell Holmes, The Common Law (Boston: Little, Brown and Co., 1881), 36.
39. Fletcher reviews how this descriptive model of mens rea was constitutionalized in Canada when the Supreme Court held that punishing a person for felony murder without proof of intention in relation to causing death violated the Charter's requirement of fundamental justice. 29 Criminal Code Act 1995 (C'th), s 5.6.
40. See Stephen Odgers, Principles of Federal Criminal Law (Sydney: Law Book Co., 2007).
41. As a consequence, a significant part of legal scholarship is devoted to the extrapolation and synthesis of the hidden principles of the criminal law.
42. See, for example, Jeremy Horder, Two Histories and Four Hidden Principles of Mens Rea, Law Quarterly Review 113 (1997): 95.
43. This point is also made in a recent contribution to the literature on codes by Paul Robinson and Markus Dirk Dubber, The American Model Penal Code: A Brief Overview, New Criminal Law Review 10, no. 3 (2007): 31
44. Lindsay Farmer, The Obsession with Definition, Social and Legal Studies 5 (1996): 57.
45. Their scholarly attacks on judicial wrong-turns were sometimes successful in promoting both legislative and judicial reform. The British campaign against culpable inadvertence as a form of recklessness in R. v. Caldwell [1982] AC 341 is a case in point. Caldwell was viewed as heresy with claims that it violated the cardinal principle that criminal fault should be assessed subjectively rather than objectively. After two decades of sustained academic attack and various judicial decisions limiting its application, the House of Lords revisited Caldwell in R. v. G. [2003] UKHL 50. Reviewing this academic critique, their Lordships reinstated a purely subjective test of recklessness for the offense of criminal damage. Not all legal scholars have accepted that objective concepts should be banished from the lexicon of criminal fault, and there is an argument that for some offenses, culpable inadvertence is an appropriate fault standard.
46. See Kumaralingam Amirthalingam, Caldwell Recklessness is Dead, Long Live Mens Rea's Fecklessness, Modern Law Review 67, no. 3 (2004): 491-500.
47. See Alan Norrie, Crime, Reason and History, 2nd ed. (London: Butt, 2001), especially chaps. 3 and 4.
48. M. Wiener, Reconstructing the Criminal (Cambridge, UK: Cambridge University Press, 1991).
49. For a general essay on the largely misplaced liberal promise of codification, see Simon Bronitt and Miriam Gani, "Criminal Codes in the 21st Century: The Paradox of the Liberal Promise, in Regulating Deviance.
50. Bronitt and McSherry, Principles of Criminal Law, 71 ff.
51. Criminal Code Act 1995 (C'th), s 5.6, [correct?]reflecting the presumption of subjective mental states in the High Court decision of He Kaw Teh v. The Queen (1985) 157 CLR 523.
52. See Martin Kayman, "A Memorial for Jeremy Bentham: Memory, Fiction, and Writing the Law, Law and Critique 15, no. 3 (2004): 210.
53. For an interesting essay exploring the role of imposed codes in colonial and post-colonial contexts see Leslie Sebba, The Creation and Evolution of Criminal Law in Colonial and Post-colonial Societies, Crime, History and Societies 3 (1999): 71-90.
54. Bentham's influence on civil law codification across Europe remains largely unacknowledged. His writing and drafts were points of reference which would inspire codifiers whether continental (one thinks of the Napoleonic codification itself at the beginning of the 19th century) or of the common law."
55. Alberto Cadoppi, "The Zanardelli Code and Codification in the Countries of the Common Law" James Cook University Law Review 7 (2000): 123.
56. Fletcher discusses Bentham's model prison, the Panopticon [15], though overlooks his contribution to the promotion of codification.
57. For Bentham's essays on codification, see Philip Schofield and Jonathan Harris (eds), Legislator of the World: Writings on Codification, Law and Education (Oxford, UK: Clarendon Press, 1998).
58. Bentham viewed common law as dog law because it punished individuals after the event, since the dog only learns after the punishment that what it has done is wrong. Alan Norrie, Crime, Reason and History, 2nd ed. (London: Butterworths, 2001), 19.
59. Bentham was prone to legal neologism. As well as Pannomion (which did not gain any currency), he is also credited with the term codification and the first use of the term international (coined in the context of a universal system of laws).
60. For a discussion of the wide range of neologism attributed to Bentham, see further: http://www.ucl.ac.uk/Bentham-Project/Faqs/Neologisms%20of%20Jeremy%20Bentham.htm.
61. Bentham offered to draft a Pannomion for the Russian Tsar, the Spanish, Portuguese, and Greek liberals, and the newly independent states of Argentina and Guatemala. See Kayman, A Memorial for Jeremy Bentham," 207-208.
62. Schofield and Harris, Legislator of the World: Writings on Codification, Law and Education, 289-90
63. quoted in Kayman, "A Memorial for Jeremy Bentham," 209.
64. Schofield and Harris's collection contains Papers Relative to Codification and Public Instruction, first published in 1817
65. Codification Proposal, Addressed to all Nations Professing Liberal Opinions, first printed in 1822 with supplements in 1827 and 1830
66. First Lines of a Proposed Code of Law for any Nation Compleat and Rationalized.
67. See further: http://www.ucl.ac.uk/Bentham-Project/.
68. Kayman, "A Memorial for Jeremy Bentham," 210.
69. Vallance v. The Queen (1961) 108 CLR 56 at 61.
70. W.H. Auden, "Law Like Love" (1940)
71. The Norton Anthology of Poetry (New York: W.W. Norton & Company, 1975), 1117-18.
72. It is important to move beyond comparisons of formal legal rules, to situating the comparisons of rules within their broader cultural context. As Roger Cotterill argues, Culture, therefore, appears fundamental - a kind of lens through which all aspects of law must be perceived, or a gateway of understanding through which every comparativists must pass so as to have any genuine access to the meaning of foreign law. Comparative Law and Legal Culture, in The Oxford Handbook of Comparative Law, ed. Mathias Reimann and Reinhard Zimmermann (Oxford, UK: Oxford University Press, 2006), 711.
73. This argument is developed by Lindsay Farmer in Criminal Law, Tradition and Legal Order (Cambridge: Cambridge University Press, 1997), 122-26 and chap. 6.
74. The idea of a core of crimes across time and place also surfaces in criminological accounts. John Braithwaite makes the claim that such categories of behavior exist in his criminology best-seller, Crime Shame and Reintegration (Cambridge, UK: Cambridge University Press, 1989) chap. 3.
75. See, for example, the extensive controversy over the proper scope of insanity, self-defense, provocation and necessity: Bronitt and McSherry, Principles of Criminal Law, 207-299.
76. In the medical context, there is profound disagreement over questions about the availability of necessity in cases in which there is an intention to hasten death to relieve suffering, as well as the continuing controversy over when human life begins and ends: Bronitt and McSherry, Principles of Criminal Law, 464-467.
77. R. A. Duff, "Virtue, Vice and Criminal Law: Do We Want an Aristotelian Criminal Law?" Buffalo Criminal Law Review 6 (2002): 154.
78. For an excellent essay reviewing concerns about grand theory in the context of rape and homicide, see Ngaire Naffine, "Moral Uncertainties of Rape and Murder: Problems at the Core of Criminal Law Theory, in Regulating Deviance, ed. McSherry, Norrie, and Bronitt.
79. Farmer, Criminal Law, Tradition and Legal Order, 181.
80. For reviews of studies that evaluate trials carried out in Australia, the U.S., Canada, and New Zealand. See Heather Strang, Restorative Justice Programs In Australia: A Report to the Criminology Research Council (Canberra: Australian Institute of Criminology, 2001),
81. John Braithwaite, "Restorative Justice," Crime and Justice: A Review of Research 25 (1999): 1
82. for extensive reviews. Generally, the literature reports extremely high levels of perceived procedural justice. Some record further benefits to the victims and the offenders, as well as the community. See, for example, Heather Strang and John Braithwaite, eds., Restorative Justice: Philosophy to Practice, (Aldershot, UK: Ashgate, 2000)
83. John Braithwaite, Restorative Justice and Responsive Regulation (Oxford, UK: Oxford University Press, 2002).
84. Exodus 21:24.
85. See David Daube, Studies in Biblical Law (Cambridge: Cambridge University Press, 1947), chap. 3: Lex Talionis"
86. Myer S. Lew, The Humanity of Jewish Law (London: Soncino Press, 1985), chap. 1.
87. Braithwaite, Restorative Justice and Responsive Regulation, 5.
88. John Braithwaite, "Crime in a Convict Society," Modern Law Review 64, no. 1 (2001): 11
89. Of course, Braithwaite concedes that this fair treatment did not extend to the Aboriginal inhabitants whose rights were often ignored or inadequately protected by law. See also I. Holloway, S. Bronitt, and J. Williams, "Rhetoric, Reason and the Rule of Law in Early Colonial New South Wales, in The Grand Experiment-Law & Legal Culture in British Settler Societies, ed. H. Foster, B. Berger, and A. Buck (Vancouver: University of British Columbia Press, 2008)
90. Norval Morris, the distinguished criminologist, has shown how Norfolk Island, a lace of secondary punishment, also provided the opportunity for important restorative experiments. See
91. Morris, Maconochie's Gentlemen: The Story of Norfolk Island and the Roots of Modern Prison Reform (New York: Oxford University Press, 2002).
92. Declan Roche, Accountability in Restorative Justice (Oxford, UK: Oxford University Press, 2003), 6.
93. Lode Walgrave, "Extending the Victim Perspective Towards a Systemic Restorative Justice Alternative, in Integrating a Victim Perspective Within Criminal Justice, ed. A. Crawford and J. Goodey (Aldershot, UK: Ashgate, 2000), 260.
94. K. Daly and H. Hayes, "Restorative Justice in Conferencing in Australia, in Trends and Issues in Crime and Criminal Justice, No. 186 (Canberra: Australian Institute of Criminology, 2001), available at http://www.aic.gov.au/publications/tandi/ti186.pdf.
95. For example, the Young Offenders Act 1997 (NSW) establishes a system of youth justice conferencing as a diversionary program from the children's court, administered by the Department of Juvenile Justice.
96. Young Offenders Act 1997 (NSW), ss. 3(ii), (iii). An evaluation conducted twelve months after the introduction of the Act found that most of the conferences met the legislation's objectives and aims. The report found high levels of satisfaction with the conference experience from all participants (that is, the victims, the victims' supporters, the offenders, and the offenders' supporters). More than 90% of all parties felt that the conference was fair to both the victim and the offender; over 90% felt they had the opportunity to express their views; and 79% said they felt satisfied with the way their case had been dealt with by the justice system.
97. Lily Trimboli, An Evaluation of the NSW Youth Justice Conferencing Scheme (New South Wales Bureau of Crime Statistics and Research, Attorney General's Department, 2000).
98. See, for example, Crimes (Restorative Justice) Act 2004 (ACT).
99. Elena Marchetti and Kathleen Daly, Indigenous Courts and Justice Practices in Australia," in Trends and Issues in Crime and Criminal Justice, No. 277 (Canberra: Australian Institute of Criminology, 2004), available at http://www.aic.gov.au/pub-Iications/tandi2/tandi277t.html.
100. Other scholars view Indigenous justice institutions as exemplifying therapeutic or restorative justice. See Arie Freiberg, "Problem-Oriented Courts: Innovative Solutions to Intractable Problems?" Journal of Judicial Administration 11, no. 1 (2001): 7-27
101. Mark Finnane, '"Payback, Customary Law and Criminal Law in Colonised Australia," International Journal of the Sociology of Law 29 (2001): 293-310.
102. Marchetti and Daly, "Indigenous Courts and Justice Practices in Australia," 4.
103. John Braithwaite, "Intention versus Reactive Fault" in Intention in Law and Philosophy, ed. N. Naffine, R. Owens, and J. Williams (Aldershot, UK: Ashgate, 2001), chap. 16.
104. Id., 345.
105. Id., 351.
106. E.g. R. v Miller [1983] 2 A.c 161
107. discussed in Bronitt and McSherry, Principles of Criminal Law, 202-05
108. This concept of law draws on Brian Simpson's idea that the common law is best understood as a system of customary law, that is a body of traditional ideas received within a caste of experts," A.W.B. Simpson, Legal Theory and Legal History- Essays on the Common Law (London: Hambledon Press, 1987), 362.
109. Which is much less exotic than Fletcher's, and begins with a legal education in England followed by two decades living and working in Australia, and sabbaticals spent teaching and researching in Canada, Hong Kong, and the U.S.
110. Markus Dirk Dubber, "Comparative Criminal Law," in Oxford Handbook of Comparative Law, ed. M. Reimann and R. Zimmermann (Oxford, UK: Oxford University Press, 2006), 1305-06.
111. Id., 1306.