Controversies in Criminal Law: Philosophical Essays on Responsibility and Procedure.
Edited by Michael J. Gorr and Sterling Harwood. (Oxford: Westview Press. 1992. 273 pp. 1.95[pounds].)
This book seeks to fill a gap in the available literature by addressing two fundamental questions about the philosophy of the criminal law and criminal procedure. The two questions are (1) what should have to be proved to establish criminal liability and punishment? and (2) what should be the legitimate procedures in seeking to implement the law? Naturally, the book sets out to shed light on these issues rather than offer definitive answers. The first part of the book deals with underlying principles of liability and responsibility, and the second part looks at three aspects of criminal procedure. In each case the topic chosen is one about which there is no complete consensus and which raises practical as well as theoretical controversy. The contributors represent a variety of backgrounds--the law, philosophy, and medicine.
The criminal law and criminal procedure/evidence have been particularly fertile in providing controversial decisions in recent years, and it is both desirable and foreseeable that a book of thi nature should be published. Some of the topics examined in the book have already been the subject of considerable discussion over many years, but that does not necessarily suggest that the book lacks originality. For example, there is an interesting analysis of mens rea and the way in which the law requires the courts to inquire into a person's state of mind. Similarly, there is a challenging and imaginative contribution which seeks to break down the traditional distinction between negligence and strict liability, and which argues that both concepts conflict with the voluntary act requirement.
Elsewhere in the book, some |old chestnuts' are given another airing, such as the apparent conflict between the arguments that on the one hand a person should only be liable for things over which he/she has control, and that on the other there is no difference in moral culpability between a successful and an unsuccessful attempt. But the author provides an interesting account of the different points of view, and offers his own argument in favour of upholding moral culpability as the dominant criterion.
The book also deals with the very topical issues, such as the defence of battered women who kill, and the recognition of pre-menstrual tension syndrome (PMS) either as a defence or as mitigation. In the former, it is argued that although a plea of self-defence by a battered woman has generally been regarded in terms of justification, it is better treated on an excusatory basis. As for PMS, the authors recognize the relative lack of understanding of the subject but plead for serious consideration of it by the criminal justice system rather than sceptical dismissal.
In some instances the reader is simply offered opposing points of view on an issue, such as the exclusion of illegally-obtained evidence, and the practice of plea bargaining. Whilst many of the arguments are not new in themselves, it is none the less helpful to consider them in juxtaposition. Overall, then the book makes a very readable and valuable addition to the literature, and offers some challenging suggestions about controversial aspects of the criminal justice process.