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Rethinking Criminal Law Theory

New Canadian Perspectives in the Philosophy of Domestic, Transnational, and International Criminal Law

Editor(s): Francois Tanguay-Renaud, James Stribopoulos
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Published: 10-01-2012
Format: Hardback
Edition: 1st
Extent: 334
ISBN: 9781849460101
Imprint: Hart Publishing
Dimensions: 234 x 156 mm
RRP: £70.00
Online price : £63.00
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Loren Epson

About Rethinking Criminal Law Theory

In the last two decades, the philosophy of criminal law has undergone a vibrant revival in Canada. The adoption of the Charter of Rights and Freedoms has given the Supreme Court of Canada unprecedented latitude to engage with principles of legal, moral, and political philosophy when elaborating its criminal law jurisprudence. Canadian scholars have followed suit by paying increased attention to the philosophical foundations of domestic criminal law. Because of Canada's leadership in international criminal law, both at the level of the International Criminal Court and of specific war crimes tribunals, they have also begun to turn their attention to international criminal law per se. This collection seeks to bring all these Canadian voices together for the first time, and evidence the fact that criminal law theory is no longer to be associated exclusively with the older British, German and American traditions. The topics covered include questions of philosophical methodology, the legitimate scope of domestic and international criminalization, rationales for criminal law defences in both domestic and international law, the philosophical underpinnings of specific crimes and forms of joint responsibility, as well as the theorization of criminal procedure and evidence law.


"In continental Europe, academic commentary on the criminal law has long manifested large philosophical ambitions. Less so in common-law countries, where the dominance of jury trial and the piecemeal development of case-law, together with the famously robust attitudes of common lawyers, have militated against detailed philosophical engagement with doctrine. Over the last 20 years or so, however, new generations of philosophically-literate lawyers and legally-informed philosophers have overcome the historic resistance. Nowhere more so, it seems, than in Canada, where the common law and civilian traditions meet. In 'Rethinking Criminal Law Theory', François Tanguay-Renaud and James Stribopoulos have joined with 14 talented Canadian colleagues to showcase the tremendous breadth and depth of their contemporary national contribution to the subject. Ranging across topics as diverse as emergency, obscenity, and insanity, these essays - without exception insightful and penetrating -set a high standard for the rest of us to aspire to.''
John Gardner, University of Oxford

"'Rethinking Criminal Law Theory' is an excellent collection of essays demonstrating the vigour, creativity and range of Canadian criminal justice scholarship. It covers a wide range of problems and issues both in the domestic and the international context. Core questions are examined in depth and new questions are brought to the fore. I recommend it very highly to criminal lawyers and philosophers of the criminal law."
Professor Victor Tadros, University of Warwick

"'Rethinking Criminal Law Theory 'is packed with outstanding contributions from criminal law theorists who are among the best not only in Canada, but in the whole English-speaking world. Broad and deep in its coverage, the collection offers fresh approaches to a wide range of cutting-edge issues in the field. It provides a resource readers will come back to repeatedly."
Stuart Green, Professor of Law and Justice Nathan L Jacobs Scholar, Rutgers University

Table Of Contents

Rethinking the Philosophical Foundations of Substantive Domestic Criminal Law
A. The Legitimate Scope of Criminal Law and the Methodology of Criminal Law Theory
1. Two Conceptions of Equality before the (Criminal) Law
Malcolm Thorburn
2. Individual Emergencies and the Rule of Criminal Law
François Tanguay-Renaud
3. The Wrong, the Bad and the Wayward: Liberalism's Mala in Se
Alan Brudner
4. Obscenity without Borders
Leslie Green
B. New Perspectives on Exculpation
5. Understanding the Voluntary Act Principle
Andrew Botterell
6. Mental Disorder and the Instability of Blame in Criminal Law
Benjamin L Berger
7. Responsibility, Self-respect and the Ethics of Self-pathologization
Annalise Acorn
8. Excuses and Excusing Conditions
Dennis Klimchuk
Rethinking the Philosophical Foundations of the Domestic Criminal Process
9. The Law of Evidence and the Protection of Rights
Hamish Stewart
10. Packer's Blind Spot: Low Visibility Encounters and the Limits of Due Process versus Crime Control
James Stribopoulos
11. Social Deprivation and Criminal Justice
Kimberley Brownlee
Rethinking International Criminal Law and its Specificities
12. Universal Jurisdiction and the Duty to Govern
Michael Giudice and Matthew Schaeffer
13. International Criminal Law: Between Utopian Dreams and Political Realities
Margaret Martin
14. Joint Intentions
Jens David Ohlin
15. Theorizing Duress and Necessity in International Criminal Law
Dwight Newman


“...this collection covers a wide range of subject matters [and] I hope [that it] has a wide circulation.” –  Mark Thornton, The Canadian Journal of Law and Jurisprudence, Volume XXVI, no. 1

“Canada is renowned for producing exceptionally mature criminal law scholarship. This collection of 15 essays – emerging from a conference held in Osgoode Hall Law School in September 2010 – demonstrates why this reputation is deserved. The contributions in this book, which are consistently of the highest quality, cover an expansive range of subjects. There is something here for all those (whether Canadian or not) interested in substantive criminal law (including international criminal law(ICL)), criminal law theory, and criminal procedure and evidence.” –  Findlay Stark, The Edinburgh Law Review, Volume 16

“...the individual chapters in the collection have all the characteristics one could ask for: they are well informed, well written, intellectually engaging and contribute to our understanding of criminal law. I recommend the book to everyone that takes an interest in criminal law and criminal law theory (and philosophy!).” –  Jorn Jacobsen, Jurisprudence, Volume 5, Issue 1

“...this is an excellent book that is recommended in the strongest of terms.” –  Gilles Renaud, The Criminal Law Quarterly

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