Miriam Gur-Arye

A Failure to Prevent Crime -- Should it Be Criminal?

The paper examines how can one explain and justify the existence of offenses like misprision of felony, that impose a duty to inform, or to take other reasonable measures, upon any person who knows of a plan to commit a felony, even when that person is in no other way connected to the situation. In order to explain the existence of such offense the paper presents historical and comparative overview. Following the result of the overview, the paper discusses possible justifications of the offenses. The paper concludes that there is a strong justification to impose a duty upon anyone present at the place when a serious crime, like murder, is being committed. Expending the duty to an earlier stage, when the serious crime is only being planned, raises substantial difficulties. To overcome these difficulties exemptions in situations in which it would be unfair to expect a person to obey the duty should be granted.

Constitutional Review of Criminal Prohibitions Affecting Human Dignity and Liberty: German and Israeli Perspectives

Criminal laws must conform to each states constitutional law. In both Israel and Germany, the highest courts have ruled on the compatibility of criminal prohibitions with constitutionally protected rights. One recurrent issue is the relationship between criminal prohibitions and the right to liberty, which is constitutionally guaranteed in both countries. The authors show that there are clear parallels in the case law of Israeli and German courts with regard to liberty. Human dignity is likewise protected in both legal systems, although it plays a different role in each. Under article 1(1) of the German Basic Law, human dignity enjoys absolute protection, which leads to problems in defining human dignity and accommodating countervailing interests in individual cases. In Israel,by contrast,human dignity is placed on the same level as liberty in the constitutional hierarchy of rights and is not afforded any special treatment by the Supreme Court. The authors suggest an intermediate solution: human dignity should not be granted absolute protection but should be treated with the greatest respect when criminal laws are reviewed for their constitutionality.

The Justification of Punishment: A Comment on Retribution and Deterrence

In this comment I wish to defend Antony Duffs final conclusion; namely, that punishment is to be seen as a deterrent system constrained by requirements of justice. I shall do this, however, mainly by using John Kleinigs arguments. My aim is to show that although Kleinig himself rejects deterrence as part of punishments justification, some of his arguments can best be defended if deterrence is taken into account. In the final section of the comment I shall return to Duffs arguments in this context, but only in order to raise some doubts as to their underlying assumption.

The Legitimacy of Judicial Responses to Moral Panic: Perceived vs. Normative Legitimacy

In some instances, the criminal justice system is affected by a moral panic; that is, by an exaggerated social reaction to an assumed threat to moral values. When influenced by moral panic, courts demonize defendants and aggravate punishments. Are such responses legitimate? This article argues that by contrast to legitimate condemnation of criminal conduct, demonizing defendants ought never be legitimate. The legitimacy of aggravating punishment requires distinguishing between the sociological concept of legitimacy (“perceived legitimacy”) and the moral concept (“normative legitimacy”). Aggravation of punishment in response to moral panic might be perceived as legitimate since it expresses public perceptions about the severity of the threat to a social value, even when these perceptions are exaggerated; however, punishments that are proportionate to such a perceived, exaggerated, threat to a social value are unjust and unfair, and therefore are normatively illegitimate. When the panic subsides, courts tend to return to lower levels of punishment. The subsidence of the panic enables one to realize that a gap between perceived and normative legitimacy has been created during the panic. Should and can the gap be bridged retroactively in order to gain full legitimacy? One way to bridge the gap is to grant clemency that will reduce the punishment of defendants whose sentences were exaggerated unduly during the panic. The article proposes a more radical mechanism that allows for sentence re-evaluation in cases of moral panic.

The nature of crime: A synthesis, following the three perspectives offered in the grammar of criminal law

I Introduction In the chapter on criminal theory in his recently published The Grammar of Criminal Law, George Fletcher distinguishes three different foci for thinking about why conduct qualifies as crime: violating a duty, causing harm, and infringing a norm. (1) According to Fletcher, A criminal might engage in any of the three types of violation.... The problem is, which type of the three violations should lie at the core of our thinking about defining conduct as criminal? [37]. Fletcher believes that it is a task for the theorist ... to consider whether a synthesis or resolution of these divergent approaches is possible [42-43]. Fletcher does not himself, however, offer such a synthesis. In this essay I take up the challenge and offer a synthesis of the three different perspectives. My main argument is that harm should lie at the core of our thinking about defining conduct as criminal. However, harm within criminal law should be understood as carrying a different meaning from the one attached to it by Fletcher in this context. The alternative meaning of criminal harm offered in this essay will enable us to synthesize the three perspectives suggested by Fletcher. According to the synthetic approach I suggest, the other two foci--violating a duty and infringing a norm--should not be regarded as providing alternative theories to the harm-based theory of crime; rather, they should be regarded as providing further restrictions on the scope of crimes based on harm. Given the importance of the term harm in my argument, a clarification is needed. The meaning of harm has been elaborated in discussions of the harm principle. (2) In this essay, however, I limit myself to the basic meaning of harm in the criminal law--a meaning that does not elucidate the main controversial issues involved in applying the harm principle to the criminal law. Moreover, since this essay focuses on Fletchers Grammar of Criminal Law, my suggestion for an understanding of criminal harm relies on distinctions that Fletcher offers in the book. II Three Perspectives on Crime Offered by Fletcher 1. Crimes based on violation of a duty are based on the inherent wrong of transgressing against ones duty. The transgression can occur without impact on the interests of others [38]. In such cases, [i]mmorality per se can become the object of state punishment [39]. Examples are the crime of treason and the European offense of failure to rescue. 2. In a harm-based system of criminal law, the essential condition for punishment is that an action caused harm [41]. The centrality of harm ... requires a response to the concrete victim and the irreversible tragedy that may have occurred [40]. 3. According to a norm-based theory of crime ... the starting point for analyzing criminal wrongdoing is not simply causing harm but causing harm under particular circumstances [42]. Harm resulting from acceptable risks, such as causing death in the normal course of driving, does not violate the norm [41]. III The Basic Meaning of Criminal Harm The meaning of criminal harm is connected with the harm principle, a theoretical paradigm that aims at limiting the power of the liberal state. As first formulated by John Stuart Mill, The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. (3) Applying the harm principle to the criminal law requires that we define the nature of the harm whose prevention may justifiably be achieved by criminalization. As shown above, according to Fletcher the harm principle requires that crime be limited to cases in which harm to a concrete victim has been caused. We need, therefore, additional theories of crime for cases in which harm has not been caused (a duty-based theory) and for cases in which causing harm is acceptable/justified (a norm-based theory). …

The Structure of Criminal Liability: Complicity.

The notion of “wrongdoing” is not recognized by the Draft Code. Nor does it classify the criminal law defences as either justification or excuse. Rather, the Draft Code distinguishes between “an offence” and “an act”. The term “offence” is used to cover cases where the actus reus is committed with the mental state required by the definition of the offence, by an offender who is criminally liable. An offender who has a defence, even a personal one, such as insanity, mistake, or duress, commits “an act”. The term “act” is used to indicate that defences negate the criminal nature of the act. I have elsewhere elaborated on the question whether or not a criminal code which aims to reform the criminal law should distinguish between justification and excuse. There I have both discussed and evaluated, inter alia , the proposals of the Draft Code in this context. Therefore, I shall not elaborate on this subject any further. I shall rather focus on the law of complicity and shall discuss three main issues.