Due to its pervasive affinity for conceptual abstractions, German criminal law has been said to suffer from a rationalist hubris that leads to the formulation of artificial rules and lacks respect for the realities of life. The following study will examine this hypothesis with respect to one area of German criminal law that is particularly characterized by an abstract, conceptual way of thinking: the area of what in Germany is called "offences against personal freedom". A case where a store detective suggested to a 16 year old female shoplifter that he would abstain from making a larceny report to the police if she engaged in sexual intercourse with him has caused a lot of debate in German criminal law as to the question of whether the detective infringed the shoplifter's "personal freedom" in a way prohibited by criminal law. This debate will be presented and contrasted with the approach Canadian criminal law would be likely to adopt had the case occurred in Canada. The thesis adopts a comparative, analytical approach that focuses on law reform: • comparative, because the question of whether German criminal law does lack respect for the realities of life will be examined by comparing German legal reasoning with Anglo-Canadian legal reasoning. • analytical, because when exploring what German and Canadian law regarding "offences against personal freedom" is, the focus will be on familiar, formal techniques of legal reasoning, such as those which draw on legislative texts, legislative history, underlying principles, academic commentary, fundamental values in the constitution, and theoretical concerns. • law reform, because the question is explored of whether German criminal law can learn from Canadian criminal law how to be more open to taking varying social locations of people affected by criminal law into account. In particular it is asked whether one can reconcile the traditional German conceptual approach that promises certainty of the law and the Canadian contextual approach that is better able to be attentive to equality as a fundamental right. It will be argued that such a reconciliation of approaches is possible and consists in a method that might be called egalitarian conceptualism. This approach unites the advantages of conceptual, abstract legal reasoning with the advantages of contextual thinking by merging equality as a fundamental concept with the existing conceptual framework of criminal liability. The principle "in dubio pro aequalitate" will be added to the principle "in dubio pro libertate".

Disertacija--Belgrad. / At head of title: Institut za kriminološka i kriminalistička istraživanja. Odeljenje za krivičnopravne nauke. Summary in English. Bibliography: p. 311-316.

Thesis (doctoral)--Universität, Bonn, 2004.

In the past 20 years the defence of provocation has shifted from the periphery of South African law to a fully developed defence available to those who kill when provoked. Not only is the defence available to the provoked, but it has been extended to those who kill when subjected to emotional stress. However, the defence is mirred in controversy and bad decisions. Not only has the precise nature of the defence not been clarified, but this lack of clarity has been exacerbated by confusing decisions of our courts. This confusion is partly a result of the development of the defence of incapacity, particularly its extension to cases involving provocation and mental stress, and partly a result of its application in practice. Three major problems have plagued the provocation defence. Firstly, the courts have confused the defence of sane automatism with that of non-pathological incapacity. Secondly, there has been an implied use of an objective test in determining criminal incapacity where the enquiry has clearly been a subjective one. Thirdly, it has been held that the problem may not so much be the subjective aspect of provocation, but rather its application. The real problem seems to lie in the theoretical confusion as to the precise meaning of lack of “selfcontrol”. Lastly, on occasion the courts have failed to distinguish lack of capacity from diminished responsibility. Thus, in order to gain clarity concerning this “grey” area of the law these problems have created, it is necessary for South African law to consult more authoritative sources to receive guidance for the problems identified. One of those sources that has been consulted is that of English law. English law, however, deals with the defence of provocation in a different manner. Raising a defence of provocation here does not result in an acquittal but rather in a reduction of the charge to manslaughter. However, the English law on provocation is also 7 plagued by various problems. Firstly, there is the issue of cumulative provocation. Generally, there is little difficulty in cases where there is no “immediate trigger”. Secondly, the fundamental flaw with the current test of the reasonable man is that the courts have had to swing between the two aims of taking a compassionate view of human frailty while endeavoring to maintain an objective standard of the reasonable man. Lastly, it can be said that the problem with the proportionality requirement is that it makes the provocation defence dependant upon the assessment of the accused’s conduct after he or she lost his or her selfcontrol rather than on his or her giving way to passion and losing control in the first place. It is clear that from the problems identified in both South African law and English law concerning the defence of provocation the courts in each jurisdiction will have to pay careful attentio n to the problems highlighted and apply the law in such a way so as to ensure clarity and legal certainty.

Due to its pervasive affinity for conceptual abstractions, German criminal law has been said to suffer from a rationalist hubris that leads to the formulation of artificial rules and lacks respect for the realities of life. The following study will examine this hypothesis with respect to one area of German criminal law that is particularly characterized by an abstract, conceptual way of thinking: the area of what in Germany is called "offences against personal freedom". A case where a store detective suggested to a 16 year old female shoplifter that he would abstain from making a larceny report to the police if she engaged in sexual intercourse with him has caused a lot of debate in German criminal law as to the question of whether the detective infringed the shoplifter's "personal freedom" in a way prohibited by criminal law. This debate will be presented and contrasted with the approach Canadian criminal law would be likely to adopt had the case occurred in Canada. The thesis adopts a comparative, analytical approach that focuses on law reform: • comparative, because the question of whether German criminal law does lack respect for the realities of life will be examined by comparing German legal reasoning with Anglo-Canadian legal reasoning. • analytical, because when exploring what German and Canadian law regarding "offences against personal freedom" is, the focus will be on familiar, formal techniques of legal reasoning, such as those which draw on legislative texts, legislative history, underlying principles, academic commentary, fundamental values in the constitution, and theoretical concerns. • law reform, because the question is explored of whether German criminal law can learn from Canadian criminal law how to be more open to taking varying social locations of people affected by criminal law into account. In particular it is asked whether one can reconcile the traditional German conceptual approach that promises certainty of the law and the Canadian contextual approach that is better able to be attentive to equality as a fundamental right. It will be argued that such a reconciliation of approaches is possible and consists in a method that might be called egalitarian conceptualism. This approach unites the advantages of conceptual, abstract legal reasoning with the advantages of contextual thinking by merging equality as a fundamental concept with the existing conceptual framework of criminal liability. The principle "in dubio pro aequalitate" will be added to the principle "in dubio pro libertate". / Law, Peter A. Allard School of / Graduate

No description available.

The objectives of this thesis are twofold: firstly, demonstrate that the string of contradictions stretching across substantive and procedural corporate criminal law may be avoided if courts refer to an appropriate mechanism of imputation; and secondly, show how such an appropriate mechanism of imputation may be determined. This study adopts a three-step process to achieve these objectives. The first step involves elaborating on the lack of coherence and integrity in the imputation of acts and intents (or causal relationships) to corporations caused by a disjunction of rules invoked by courts. The second step involves establishing parameters by which mechanisms of imputation may be evaluated. The third step involves evaluating a number of samples by reference to the established parameters. Five mechanisms of imputation applicable in the United Kingdom and in some jurisdictions that trace their legal heritage to the United Kingdom are evaluated. In the conclusion, it is submitted that although none of the mechanisms evaluated may be deemed to be the appropriate mechanism, the aggregation doctrine is the least inappropriate. This is because although it requires some modification, it can best be aligned with propositions of how the criminal liability of corporations may be established on a coherent and consistent basis. The propositions that are put forward include the use of the doctrine of innocent agency to establish a corporation’s guilt in instances where no guilty agent may be identified; and the use of the principle of accessorial liability to establish a corporation’s guilt in instances where a guilty agent may be identified. The aggregation doctrine as modified in this study will enable the prosecutor to establish a corporation’s guilt as advised above if measurable values are given to the ‘innocent’ acts of agents and if emphasis is placed on how the corporation reacted to the discursive dilemma that arose in the decision-making process that preceded the performance of the relevant activity. This will provide evidence to the effect that the aggregated act represents the corporation’s subjective position.

No description available.

The term ‘hypoplasia' refers to a biological inability to mature properly, due to disease or an inadequate supply of nutrients, which results in incomplete or arrested development. This thesis will seek to demonstrate that the concept 2 of ‘hypoplasia' best represents the arrested development of the Defence role in International Criminal Law (ICL). The limited and delayed development of the Defence during the creation of the institutions will be argued as having resulted in profound and lasting consequences, which affect all manner of defence functions, both in theory and in practice. It will be argued that whilst the ‘modern institutions' provide fair trial protections in their various statutes, rules and codes, such guarantees do not manifest adequately into practical safeguards at trial. Thus, it will be argued ultimately that, when considered collectively, there exists an Inequality of Arms at the modern ICL courts and tribunals, which is worthy of greater consideration and recognition. This Chapter will begin by considering the relevance of the international context for the ICL accused, both in relation to the severity of the crimes of which he is accused, and the global platform on which he appears. Next, Section 3 will provide an overview of the structure of this thesis. Section 4 will then set out the research methods used, together with a rationale justifying the selection of the ‘modern institutions' (ICTY, SCSL & ICC), which form the focus of this study. Sections 5 & 6 will attempt to draw together some of the key themes of this thesis, including the anxiety surrounding the international accused which, it will be argued, has ultimately led to the ‘hypoplasia' of the Defence.

To date, the arrest warrants issued by the ICC against the Sudanese President, as a suspect of heinous international crimes committed in Darfur, have not been enforced. This thesis questions and analyzes the reasons behind this failure. The thesis also considers the question whether the official status of Omar Al Bashir, as the incumbent head of state, shields him from prosecution before the ICC. To answer this question, the thesis examines the various international law theories related to the heads of state immunity and explains their relevance and applicability to the case of Al Bashir. Finally, the thesis evaluates the likelihood of the arrest of the Sudanese President and explores the legal foundation of each possible action. The thesis concludes that the Genocide Convention remains the most instrumental and effective authority for the apprehension of Al Bashir, and it further illustrates its binding effect beyond the ICC states parties.