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Probable cause : a philosophical inquiry /De Bolt, Darian Clarke, January 1993 (has links)
Thesis (Ph. D.)--University of Oklahoma, 1993. / Includes bibliographical references (leaves 326-336).
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Between concepts and context: protection of "personal freedom" : a comparative case study of German and Canadian criminal lawHeidt, Anne-Katrin 11 1900 (has links)
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".
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Between concepts and context: protection of "personal freedom" : a comparative case study of German and Canadian criminal lawHeidt, Anne-Katrin 11 1900 (has links)
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
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The heart of the matter: emotion in the criminal lawReilly, Alexander 05 1900 (has links)
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.
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The heart of the matter: emotion in the criminal lawReilly, Alexander 05 1900 (has links)
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
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