Liberal Criminal Theory: Essays for Andreas von Hirsch

408 Pages·2014·4.45 MB·English

by  A P Simester

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his book celebrates Andreas (Andrew)
AP Simester is Professor of Law and Provost’s
von Hirsch’s pioneering contributions to
Chair at the National University of Singapore, criminal
liberal criminal theory. He is particularly
an Honorary Research Fellow at the Institute
noted for reinvigorating desert-based theories of
of Criminology, University of Cambridge, and
Honorary Professor in Law at Uppsala University. l punishment, for his development of principled
Theory normative constraints on the enactment of
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Antje du Bois-Pedain is a University Senior b criminal laws, and for helping to bridge the gap
Lecturer at the Faculty of Law, University of between Anglo-American and German criminal
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Cambridge. r deep commitment to a liberal vision of the state.
andreas von hirsch This collection brings together a distinguished
Ulfrid Neumann is Professor of Criminal Law, a
group of international authors, who pay tribute
Criminal Procedure, Legal Theory and Sociology
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to von Hirsch by engaging with topics on which
of Law at the Goethe-University in Frankfurt.
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and Ulfrid neumann
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Cover image: A prison without a prisoner. Anglesey County Gaol,
Wales, 1873. (print from a private collection)
Cover design: Simon Levy www.hartpub.co.uk
Simester_9781849465144_Artwork.indd 1 28/07/2014 15:34

LIBERAL CRIMINAL THEORY
This book celebrates Andreas (Andrew) von Hirsch’s pioneering contributions to
liberal criminal theory. He is particularly noted for reinvigorating desert-based
theories of punishment, for his development of principled normative constraints
on the enactment of criminal laws, and for helping to bridge the gap between Anglo-
American and German criminal law scholarship. Underpinning his work is a deep
commitment to a liberal vision of the state. This collection brings together a distin-
guished group of international authors, who pay tribute to von Hirsch by engaging
with topics on which he himself has focused. The essays range across sentencing
theory, questions of criminalisation, and the relation between criminal law and the
authority of the state. Together, they articulate and defend the ideal of a liberal
criminal justice system, and present a fitting accolade to Andreas von Hirsch’s
scholarly life.

Liberal Criminal Theory
Essays for Andreas von Hirsch
Edited by
AP Simester
Antje du Bois-Pedain
and
Ulfrid Neumann
With translations by
Antje du Bois-Pedain

OXFORD AND PORTLAND, OREGON
2014
Published in the United Kingdom by Hart Publishing Ltd
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© The editors and contributors severally, 2014
The editors and contributors have asserted their right under the Copyright, Designs and Patents Act
1988, to be identified as the authors of this work.
Hart Publishing is an imprint of Bloomsbury Publishing plc.
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or
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addressed to Hart Publishing Ltd at the address above.
British Library Cataloguing in Publication Data
Data Available
ISBN: 978-1-84946-514-4
ISBN (ePDF): 978-1-78225-455-3
Festschrift für Andreas von Hirsch zum
80. Geburtstag am 16. Juli 2014

CONTENTS
List of Contributors xiii
Editors’ Introduction xv
Part 1: Punishment and Prevention
1. Punishment Paradigms and the Role of the Preventive State
Andrew Ashworth and Lucia Zedner 3
I. The Role of Prudential Disincentives 5
II. The Scope of the State’s Authority to Censure 7
III. The State’s Preventive Obligation 9
IV. Developing the Preventive Obligation 14
V. Conclusion 21
2. Prevention, Censure and Responsibility: The Recent Debate on the
Purposes of Punishment*
Claus Roxin 23
I. Overcoming the Simple Contrast between Two Strands of
Theories? 23
II. The Shortcomings of Traditional ‘Absolute’ and ‘Relative’
Theories of Punishment 25
III. Principled Limits on Punishment, Guilt and Censure 32
IV. Why Must the Perpetrator Allow Himself to be Roped in
for the Achievement of the State’s Preventive Aims? 33
V. On the Expressive Function of Punishment 39
VI. Conclusion 41
3. Prevention with a Moral Voice
JR Edwards and AP Simester 43
I. Reconciling Desert and Deterrence 45
II. Respecting Persons: Hegel and the Moral Voice 50
III. Not Treating People as Means 59
IV. Conclusion 64
4. The ‘Deserved’ Punishment*
Ulfrid Neumann 67
I. ‘Effective’ versus ‘Deserved’ Punishment: a Hypothetical
Scenario 68
viii Contents
II. The Deserved Punishment: an Essential Component of
‘Absolute’ (Deontological) Theories of Punishment 70
III. The Deserved Punishment in Complex (‘Unified’) Theories
of Punishment 72
IV. The Culpability Principle: Ways towards its Recognition
within a Theory of Punishment 73
V. The Culpability Principle as an Integral Component of the
Institution of Punishment 77
VI. Punishment as Reaction and as Retribution 79
Part 2: Punishment, Desert and Communication
5. After the Crime: Post-Offence Conduct and Penal Censure
Julian V Roberts and Hannah Maslen 87
I. Introduction 88
II. Defining Post-Offence-related Conduct 93
III. Justifying the Mitigating Role of Commendable POC:
An Offence-seriousness Approach 96
IV. A More Expansive Account of the Normative Value of POC:
Censure and Broader Retributive Values 103
V. Some External Objections to POC as a Sentencing Factor 107
VI. Conclusions 108
6. Does Punishment Honour the Offender?*
Kurt Seelmann 111
I. Overview 111
II. Reprobation and Treatment as a ‘Moral Agent’, ie as a
Participant in Moral Discourse 112
III. Punishment as Honouring the Offender in German Idealist
Philosophy 113
IV. What are the Differences between Strawson and the German
Idealists with respect to the Function of Penal Censure? 115
V. Imputation and the Person prior to Idealism: Attribution of
Responsibility as a way of Taking Identity Seriously 117
VI. Criticising this Tradition with Assistance from Hegel?
(The Case of Forgiveness) 119
7. Criminal Law, Crime and Punishment as Communication
Klaus Günther 123
I. Punishment: From Welfare Instrumentalism to Moral
Expressivism 123
II. The Communicative Turn 124
III. Punishment as Communication 126
IV. What does the Crime Say? 127