Thesis (J.C.L.)--Catholic University of America, 2001. / Includes bibliographical references (leaves 60-69).

Thesis (J.C.L.)--Catholic University of America, 2001. / Includes bibliographical references (leaves 60-69).

Thesis (doctoral)--Johannes Gutenberg-Universität, Mainz, 2004.

What is the state's duty to penalize serious interpersonal exploitation using the criminal law? Does the state discharge this duty appropriately? These are large questions and this thesis sets out to reassess one part of the puzzle of exploitation. The focus is upon interpersonal exploitation and property offences in England and Wales. Criminal law commentators frequently state that several property offences are justified on the basis that they penalize exploitation. For example, the tendency has been to assume that section 1 of the Fraud Act 2006 performs this function, together with its accompanying sentencing guidelines. One of the objectives of this thesis is to expose the precarious foundations of relying upon existing property offences to censure exploitation. For example, it is not clear what the scope of the wrong of exploitation under discussion actually is. This thesis argues that analysis of the relationship between wrongful interpersonal exploitation and property offences has been woefully superficial in English law and is ripe for reappraisal. The second objective is to identify and to elucidate a hitherto neglected wrong of acquisitive exploitation. An analytical account of the wrong is presented which will be of interest to criminal law theorists. Acquisitive exploitation represents a distinctive method of using vulnerable persons, under the cover of dishonesty. With a careful account of wrongful acquisitive exploitation in hand, the third objective is to raise questions about criminal liability for acquisitive exploitation. Ought the criminal law to penalize acquisitive exploitation, and, if so, how? Are there grounds for penalizing acquisitive exploitation more consistently and with improved labelling? These questions must be thoroughly debated. A credible opening bid is presented in relation to them - first, by considering whether acquisitive exploitation might be used to more fairly label property offences; and second, by assessing justifications for a substantive acquisitive exploitation offence.

The legal framework and legislation governing the rights of the children have become of great concern in modern societies, particularly, in the area of criminal justice and human rights. The Convention on the Rights of the Child and African Charter on the Rights and Welfare of the Child are basic international and regional conventions regulating the rights of the children and include how to deal with children in conflict with the law. States parties to these conventions are required to take appropriate measures, which includes enactment of legislation to give effect to these rights. Legislative instruments must address the following issues: The principle of the best interest of the child; the age of criminal responsibility; restorative justice; diversion; and the trials of children in conflict with the law. The above-mentioned instrument require and emphasise the use of an alternative approach in respect of the children who are in conflict with law. In this research a comparative approach is used to compare the South African and South Sudanese child justice legislative instruments. The legislative instruments pertaining to child justice in both countries are set out and compared. It is concluded that the South African legislative instruments are more aligned to the Convention on the Rights of the Child and African Charter on the Rights and Welfare of the Child. Recommendations and proposals are made to enact to adopt in South Sudan new legislative measures and provisions aim to afford more protection to children in conflict with the law and to strike a better balance between rights of a child and victim of crimes.

This thesis examines the role of emotion in the criminal law. It identifies the current understanding of emotion in the law, and challenges this understanding as it is revealed in the rules of criminal liability. It offers a new approach to understanding emotion which has important implications for the grounds of legal knowledge, the structure of the rules of criminal liability, and the process of judgment. Chapter One reviews theoretical approaches to understanding emotion in philosophy, psychology and law. The chapter introduces a number of theoretical approaches to analyzing emotion, focusing particularly on the development in the understanding of the relationship between emotion and reason. Chapter Two examines models of moral and legal responsibility to identify their implicit understanding of emotion. Chapter Three focuses on the role of emotion in the rules of criminal liability, and, in particular, in the criminal defences of provocation, duress and self-defence. The law understands emotion to be an entity explainable in terms of the 'mechanisms' of'cognition' and 'affect' which underpin it. The chapter argues that the law adopts a different and conflicting understanding of these mechanisms in the rules of criminal liability, and that these differences have important normative implications. Chapter Four challenges the grounds of knowledge upon which assessments of criminal liability are based. Emotion becomes a metaphor for the need to reconceive the rules of criminal liability and the process of judgment. The chapter adopts a social constructionist approach to understanding emotion. Using this approach, it reassesses the role of emotion in the criminal defences of provocation, self-defence and duress, and explains the process of judgment as an emotional phenomenon. The thesis concludes that a constructionist approach to understanding emotion is well suited to the assessment of conduct in its spatial, historical and cultural context; and for this reason ought to be emphasized in the legal assessment of liability and punishment. / Law, Peter A. Allard School of / Graduate

博士課程単位取得論文(法学研究科) / 263p / 一橋大学

This thesis investigates three exemplars of uxorial substantive privileges in the criminal law: the marital coercion doctrine, the intraspousal conspiracy exemption, and the uxorial post-offence accessorial immunity. Their history, choreography and variations are comparatively investigated across the common law jurisdictions including the impact of statutory interventions. The principal argument is that the judicial and legislative treatment of these uxorial privileges has been inconsistent or erratic so that they are not the products of any systematic, modern development in the criminal law. This thesis proposes that there is no justification for their continued retention in common law legal systems. Archival, Parliamentary, and other sources have been used to identify the factors impinging upon the creation of specific statutory uxorial privileges. The diaspora of these laws throughout the other common law jurisdictions is investigated. The discussion is illustrated by examination of the particular issues raised by polygamy, customary law concubinage as well as by gender-reassignment. This thesis examines whether both gender-specific and marriage-specific criteria are valid constituents within the parameters of substantive criminal law. It traces the genesis of these special defences within the criminal law available exclusively to women, from the time of King Ine of the West Saxons c712, to examine the current status of such laws throughout common law jurisdictions. The investigation explores factors shaping the creation of a statutory defence of marital coercion by the British Parliament in 1925 and outlines the challenges generated by that law and its extraordinary resilience. This thesis demonstrates the failure of the criminal law to provide an overarching construct to implement emergent gender equality.

O presente trabalho tem por objetivo a análise da proposta de divisão do sistema jurídico-penal, com a criação de um direito penal secundário de características próprias, marcado pela não recorrência à pena privativa de liberdade e pelo estabelecimento de critérios materiais de seleção de condutas ilícitas. Para atingir mencionado desiderato foi feita uma análise das principais teorias que levaram ao direito penal secundário, a saber, direito penal de polícia, direito penal administrativo e direito penal de ordem. Também foi feito um estudo da evolução do tratamento do tema nos ordenamentos jurídicos alemão, português, espanhol e brasileiro, com enfoque nos critérios de alocação dos ilícitos entre os âmbitos de intervenção punitiva. Por fim, foram analisadas construções semelhantes às do direito penal secundário, procurando apontar suas semelhanças e diferenças. Após as conclusões sobre a construção teórica do direito penal secundário, pudemos nos direcionar para a proposição de uma remodelagem sistêmica dos mecanismos de intervenção punitiva do Estado, propondo, ao final, a partir da premissa central da necessidade de adoção de um direito punitivo geral, critérios materiais de alocação dos ilícitos entre os sistemas de intervenção punitiva do Estado, com base na estrutura da categoria da dignidade penal. / The purpose of this paper is to analyze the proposal to divide criminal legal system, with the creation of a secondary criminal law system with particular traits, characterized by the absence of recourse to imprisonment and the establishment of material criteria for the selection of misconducts. In order to reach its main purpose, analysis of the main theories leading to secondary criminal law, namely the police criminal law, the administrative criminal law and the order criminal law, was conducted. In addition, a study on the evolution of the treatment of the subject at the German, Portuguese, Spanish, and Brazilian legal systems was performed, focusing on the criteria for the allocation of the misconducts among the spheres of punitive intervention. Lastly, similar constructions to the secondary criminal law were analyzed, in order to highlight their similarities and differences. Following the conclusions on the theoretical structuring of secondary criminal law, a systemic reshaping of punitive intervention mechanism was proposed, in a manner that, at last, considering the central premise of the need to adopt a general punitive law, the establishment of material criteria for sorting the misconducts among the punitive intervention systems, relying on the criminal legitimacy category.

O presente trabalho tem por objetivo a análise da proposta de divisão do sistema jurídico-penal, com a criação de um direito penal secundário de características próprias, marcado pela não recorrência à pena privativa de liberdade e pelo estabelecimento de critérios materiais de seleção de condutas ilícitas. Para atingir mencionado desiderato foi feita uma análise das principais teorias que levaram ao direito penal secundário, a saber, direito penal de polícia, direito penal administrativo e direito penal de ordem. Também foi feito um estudo da evolução do tratamento do tema nos ordenamentos jurídicos alemão, português, espanhol e brasileiro, com enfoque nos critérios de alocação dos ilícitos entre os âmbitos de intervenção punitiva. Por fim, foram analisadas construções semelhantes às do direito penal secundário, procurando apontar suas semelhanças e diferenças. Após as conclusões sobre a construção teórica do direito penal secundário, pudemos nos direcionar para a proposição de uma remodelagem sistêmica dos mecanismos de intervenção punitiva do Estado, propondo, ao final, a partir da premissa central da necessidade de adoção de um direito punitivo geral, critérios materiais de alocação dos ilícitos entre os sistemas de intervenção punitiva do Estado, com base na estrutura da categoria da dignidade penal. / The purpose of this paper is to analyze the proposal to divide criminal legal system, with the creation of a secondary criminal law system with particular traits, characterized by the absence of recourse to imprisonment and the establishment of material criteria for the selection of misconducts. In order to reach its main purpose, analysis of the main theories leading to secondary criminal law, namely the police criminal law, the administrative criminal law and the order criminal law, was conducted. In addition, a study on the evolution of the treatment of the subject at the German, Portuguese, Spanish, and Brazilian legal systems was performed, focusing on the criteria for the allocation of the misconducts among the spheres of punitive intervention. Lastly, similar constructions to the secondary criminal law were analyzed, in order to highlight their similarities and differences. Following the conclusions on the theoretical structuring of secondary criminal law, a systemic reshaping of punitive intervention mechanism was proposed, in a manner that, at last, considering the central premise of the need to adopt a general punitive law, the establishment of material criteria for sorting the misconducts among the punitive intervention systems, relying on the criminal legitimacy category.