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Gerry Johnstone - Law and Crime

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What is the definition of crime? Law and Crime helps the criminologist to understand how the law constructs crime and how one might engage in critical analysis of such legal constructions. It uses a thematic approach to comprehensively explore the relationship between criminal conduct, criminal justice and the law.

The book introduces key topics in criminal law scholarship for criminologists, including:

  • criminalization
  • fault and criminal responsibility
  • corporate liability
  • the production of criminal guilt
  • the nature of judicial punishment.

Aimed at students with no prior knowledge of law, the book includes many useful features to enhance understanding, from chapter overviews and key terms to study questions and suggestions for further reading.

The Key Approaches to Criminology series celebrates the removal of traditional barriers between disciplines and, specifically, reflects criminologys interdisciplinary nature and focus. It brings together some of the leading scholars working at the intersections of criminology and related subjects. Each book in the series helps readers to make intellectual connections between criminology and other discourses, and to understand the importance of studying crime and criminal justice within the context of broader debates.

The series is intended to have appeal across the entire range of undergraduate and postgraduate studies and beyond, comprising books which offer introductions to the fields as well as advancing ideas and knowledge in their subject areas.

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Law & Crime
Key Approaches to Criminology

The Key Approaches to Criminology series aims to take advantage of the disappearance of traditional barriers between disciplines and to reflect criminologys interdisciplinary nature and focus. Books in the series offer undergraduate and postgraduate students introductions to the subject, but the aim is also to advance discussion, move debates forward, and set new agendas in the field.
Law and Crime is one of the few books in the Key Approaches series not authored by scholars who are based in a Criminology department, group or research institute. This comment is not meant disingenuously. Far from it; I am inordinately proud that the series has attracted two such eminent and respected academics from Law to write for it. In any case, as Gerry Johnstone and Tony Ward acknowledge, they benefit from working in a stimulating interdisciplinary environment and both have made an outstanding contribution to the field of Criminology. Tonys work in areas as diverse as psychiatry and criminal responsibility, crimes of governments, environmental harms, terrorism, and historical perspectives on crime and punishment, has had a significant influence on the development of Criminology over the last decade or more and all this achieved after qualifying as a Barrister and then working for the voluntary organizations Radical Alternatives to Prison and INQUEST. Gerry, meanwhile, has published widely in the areas of therapeutic interventions into criminal justice, participatory justice and critical legal education but, most notably from a criminologists viewpoint, he has made the academic study of restorative justice virtually his own!
There can, then, be no two individuals better placed to write a book on Law and Crime for this series. They have succeeded in producing a book that covers all the basics in terms of the birth of criminal justice, the development of criminal liability, the tenets of criminal law, and the historico-legal contours that have shaped modern punishment. Theoretically robust and avowedly interdisciplinary, they then apply the insights gained from this broad analysis to the specifics of cases, many of which have reached the criminal courts; some of which typically evade criminalization. Their critique is thoroughly researched, thought-provoking and immensely readable. Law and Crime will be greatly appreciated by all scholars working at the interface of criminology, criminal justice and law, and is a very welcome addition to Key Approaches to Criminology series.
Yvonne Jewkes
Series Editor
Law & Crime
Gerry Johnstone & Tony Ward
Gerry Johnstone Tony Ward 2010 First published 2010 Apart from any fair - photo 1
Gerry Johnstone & Tony Ward 2010
First published 2010
Apart from any fair dealing for the purposes of research or private study, or criticism or review, as permitted under the Copyright, Designs and Patents Act, 1988, this publication may be reproduced, stored or transmitted in any form, or by any means, only with the prior permission in writing of the publishers, or in the case of reprographic reproduction, in accordance with the terms of licences issued by the Copyright Licensing Agency. Inquiries concerning reproduction outside those terms should be sent to the publishers.
SAGE Publications Ltd
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SAGE Publications India Pvt Ltd
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SAGE Publications Asia-Pacific Pte Ltd
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Library of Congress Control Number Available
British Library Cataloguing in Publication data
A catalogue record for this book is available
from the British Library
ISBN 978-1-4129-1123-8
ISBN 978-1-4129-1124-5
Typeset by C&M Digitals (P) Ltd, Chennai, India
Printed by CPI Antony Rowe, Chippenham, Wiltshire
Printed on paper from sustainable resources
Contents The criminological analysis of penal excess Acknowledgements We - photo 2
Contents
The criminological analysis of penal excess
Acknowledgements
We would like to thank Yvonne Jewkes, the series editor, for inviting us to write the book and for providing useful feedback on the plan. Peter Young provided useful feedback at an early stage (as did a second, anonymous, referee) and was a constant source of intellectual stimulation while we were writing the book. Peter is one of many colleagues in the Law School, the Centre for Criminology and the Institute of Applied Ethics at Hull who have contributed to making this an ideal environment in which to carry out interdisciplinary work. It is a particular pleasure to acknowledge the stimulating comments of some of our undergraduate students of criminal law, especially in relation to the issues discussed in Chapter 5. Penny Green, Matthew Happold and Kirsten McConnachie all provided helpful and encouraging comments on Chapter 9.
We thank Caroline Porter and Sarah-Jayne Boyd at Sage for their advice, support and, above all, patience. On a more personal note, thanks to Brigid, Eleanor and Pierce Johnstone and Joy Gledhill for their constant support and encouragement.
1
Criminal Law and its Critics

Chapter Contents

OVERVIEW

Chapter 1:
Explains the purpose of this book.
Outlines some prominent features of the institution of criminal law.
Introduces a number of important critical perspectives on criminal law.
KEY TERMS

criminal law the libertarian critique the scientific critique the socio-political critique the restorative justice critique

Introduction

This book is an introductory account of the institution of criminal law, written for students and scholars of criminology and related social sciences. To be clear, it is not a book on law for criminologists. Rather, we seek to provide an interdisciplinary analysis of key elements of the institution of criminal law. The disciplines we draw upon include not only criminology and law, but also history, philosophy, politics and sociology. Drawing upon works from these disciplines, we explore the creation, development and key features of criminal law, along with some of the ideas, values and projects that have shaped the institution and our expectations of it.
Our account of criminal law is a critical one. We do not start out by making the assumption that criminal law is a necessary social institution necessary to restrain the tendency which many people have to behave in ways that are seriously wrongful and harmful. Nor do we assume that the criminal law of today is a distinct improvement over what went before. Rather, we want to provide a fair hearing to the viewpoint that criminal law is a deeply flawed institution, e.g. one which causes more harm than it prevents or which unjustifiably violates the liberties of people in order to provide spurious benefits to society. On the other hand, we will seek to avoid the opposite error of taking it for granted that criminal law is a failing social institution. Hence, we will show that, for all its deficiencies, the criminal law has played a crucial role in articulating and defending very important social values.
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