This chapter examines the three main ways to approach the justifications of punishment. These are consequentialist philosophies that look to justify punishment in terms of preventing future offending; retributive philosophies that focus on responding proportionately to the actual offence; and abolitionist philosophies which maintain that punishment cannot be either morally or politically justified.
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This chapter begins by examining the increased policy focus on victims of crime and their more recent involvement in the sentencing process via victim impact statements. It reviews changes in sentencing law which have aimed to ensure the offender does not profit from crime—such as confiscation orders—and that the offender pays financial compensation to the victim. Secondly, it discusses conflicting approaches to a focus on the impact of a sentence on the offender or the offender’s family, covering justifications from penology and evidence—from research and appellate cases—of practice in the courts. This includes discussion of the role of personal mitigation in retributivist and utilitarian sentencing and the influence it may have on the outcome for less serious cases.
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This chapter assesses the rationales and justifications commonly seen for and against patents, which inform all aspects of patent law. Against this backdrop, the chapter explains the architecture and procedures of contemporary patent systems as they operate in the UK, within the European patent system, and through international agreements, instruments, and procedures. The chapter considers the patent registration process in the UK. Unlike copyright—and like registered trade marks and registered designs—patent protection is a registered right, granted by an intellectual property office following an application and examination process. The chapter also reviews changes over time and areas of particular debate and possible future evolution.
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Samantha Besson
This chapter discusses the importance of justifying human rights, particularly in response to critics. It explains the following: why we need to justify human rights; what it means to justify human rights; what the different justifications for human rights may be; and what some of the implications of the justifications of human rights may be for other key issues in human rights theory.
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David Ormerod and Karl Laird
This chapter considers the most commonly occurring ‘mental condition defences’, focusing on the pleas of insanity, intoxication and mistake. The common law historically made a distinction between justification and excuse, at least in relation to homicide. It is said that justification relates to the rightness of the act but to excuse as to the circumstances of the individual actor. The chapter examines the relationship between mental condition defences, insanity and unfitness to be tried, and explains the Law Commission’s most recent recommendations for reforming unfitness and other mental condition defences. It explores the test of insanity, disease of the mind (insanity) versus external factor (sane automatism), insane delusions and insanity, burden of proof, function of the jury, self-induced automatism, intoxication as a denial of criminal responsibility, voluntary and involuntary intoxication, dangerous or non-dangerous drugs in basic intent crime and intoxication induced with the intention of committing crime.
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This chapter examines the types of defence that can be used to counter claims for intentional torts against property or person (although they might be applicable to other torts as well). It explains that defences to these torts can be placed within a threefold system. The first category consists of absent element defences (a successful plea means that the tort has not been committed), the second comprises justification defences (meaning that there was reason to commit the tort), and the third contains public policy defences (which means that the interests of the state intrude so as to deprive the claimant of an action).
Chapter
Samantha Besson
This chapter discusses the importance of justifying human rights, particularly in response to critics. It explains the following: why we need to justify human rights; what it means to justify human rights; what the different justifications for human rights may be; and what some of the implications of the justifications of human rights may be for other key issues in human rights theory.
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This chapter addresses one of the more contentious issues in international criminal law: the extent to which a defendant should be able to plead that there are circumstances excusing or justifying what will invariably be appalling crimes. It first notes that while the distinction between justifications and excuses is known in a number of national legal systems, it is of no direct relevance to international criminal law. It then discusses the following defences before international criminal tribunals: mental incapacity, intoxication, self-defence, duress and necessity, mistake of fact and law, and superior orders. It also considers two defences which arise under the law of war crimes: reprisals and ‘tu quoque’, and military necessity.
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Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter introduces the nature of a ‘defence’, and the key issues in relation to various ‘defences’. The nature of defences is hard to generalize. Excuses and justifications are useful classifications. The absence of consent is an important component of many offences. The Law Commission had suggested that consent should not be a defence for those who deliberately or recklessly induce serious disabling injury.
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The expression actus reus can be summarized as meaning an act (or sometimes an omission or state of affairs) indicated in the definition of the offence charged together with any consequence of that act, and any surrounding circumstance (other than the mens rea requirements or excuse.) There can be no criminal liability unless the whole actus reus is satisfied. This chapter explains what is involved in the requirement that the actus reus of an offence must be committed if the defendant is to be criminally liable. It also explains acts, omissions and states of affairs, consequences and circumstances, justifications or excuses and causation.
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This chapter examines the ways in which sentencing discretion is limited: a sentencing system in which there were no controls on how the judge or magistrate came to a decision on sentence would not be a principled system and could lead to injustice in individual cases. This chapter, therefore, examines the ways in which sentencing discretion is constrained, not only through law and guidance but also through the use of a justificatory principle as a constraint. In particular, it reviews the development of new forms of sentencing guidance, notably the definitive guidelines produced by the Sentencing Council, and discusses in detail the importance of a retributivist rationale. It explains classical retributivism, with a focus on Kant and Hegel, as well as modern retributivism.
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This chapter deals with general complete defences that the accused can use to avoid liability. The focus is on defences that can apply (with one exception) to offences throughout the criminal law and will result in the accused’s acquittal. Five kinds of general complete defences are examined: insanity (as a defence), duress by threats, duress by circumstances, the public and private defence (also known as self-defence), and necessity. The chapter first considers the categorical division between excuses and justifications, before explaining the elements of each of the defences in turn. It then outlines potential options for legal reform concerning individual defences and concludes by discussing the application of the general defences to problem facts. Relevant cases are highlighted throughout the chapter, with brief summaries of the main facts and judgments.
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L. Bently, B. Sherman, D. Gangjee, and P. Johnson
This chapter introduces the reader to patents, how they work, and the laws governing them. It begins with a history of the patent system in the UK up to 1977. This is followed by a discussion of various justifications that have been proposed in support of the patent system, such as the natural rights of inventors to their work and the public benefits that flow from the grant of patent monopolies. It also considers the current regulatory regime governing the creation and use of patents in the UK and Europe, with particular reference to the European Patent Convention and the Patents Act 1977. Finally, the chapter discusses the impact of the European Commission on patent law and some of the international treaties that have influenced British patent law, including the Patent Cooperation Treaty, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and the Convention on Biological Diversity. The chapter also speculates on the impact of Brexit on UK patent law.
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L. Bently, B. Sherman, D. Gangjee, and P. Johnson
This chapter provides an introduction to copyright and the history and functions of copyright law, as well as international and European trends and developments that have influenced copyright law in the UK. It first considers ‘author’s rights’ and ‘neighbouring rights’ before turning to justifications that have been put forward for copyright, with particular reference to arguments invoking natural rights, rewards and incentives, neoliberal economics, and the ‘democratic paradigm’. The chapter also examines the seven significant treaties that have influenced British copyright law as well as European directives that have had an important and growing impact on British copyright law, including the Software Directive, the Related Rights Directive, and the Information Society Directive.
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L. Bently, B. Sherman, D. Gangjee, and P. Johnson
This chapter focuses on the process of registration for trade marks in the United Kingdom, including changes introduced by the UK leaving the EU, as well as international protection. It begins by explaining the procedures and documentation needed in filing trade mark applications at the national and international levels, while outlining the examination process. After considering national registration, the international filing systems established under the Madrid Agreement on the International Registration of Marks of 1891 and the Madrid Protocol of 1989 are described. The chapter concludes by presenting possible avenues through which to acquire trade mark protection.
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L. Bently, B. Sherman, D. Gangjee, and P. Johnson
This chapter provides an introduction to copyright and the history and functions of copyright law, as well as international and European trends and developments that have influenced copyright law in the UK. It first considers ‘author’s rights’ and ‘neighbouring rights’ before turning to justifications that have been put forward for copyright, with particular reference to arguments invoking natural rights, rewards and incentives, neoliberal economics, and the ‘democratic paradigm’. The chapter also examines the seven significant treaties that have influenced British copyright law as well as European directives that have had an important and growing impact on British copyright law, including the Software Directive, the Related Rights Directive, and the Cable and Satellite Directive.
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All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter examines the philosophical and justificatory context in which intellectual property rights (IPRs) have developed, and the international and regional frameworks that have emerged for their protection. It also considers some of the important contemporary debates surrounding IPRs, such as the interface with human rights and the notion of the public domain, and discusses how IP law might develop in the UK following its exit from the EU. There is a brief introduction on how to enforce IPRs.
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This chapter deals with age discrimination law under the Equality Act. It discusses the history and background of age discrimination law, protected characteristics, prohibited conduct on grounds of age discrimination, and key debates about how the law operates and how it might be improved in the future. There is no longer a default retirement age in the UK. If an employer wishes to retire an employee at a particular age, he has to have objective reasons for choosing that age. Unlike other protected characteristics, direct age discrimination can be justified, and there are a number of exceptions, such as length of service benefits, which have been kept from the Age Regulations of 2006.
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This chapter reviews the current policy focus on the ‘dangerous’ offender and the aim of protecting the public from the risk posed by an offender’s reoffending. It discusses developments in relation to a ‘culture of control’ and examines the utilitarian justifications for the incapacitation of offenders, or groups of offenders, believed to be dangerous. The chapter focuses on incapacitation, which is another utilitarian tool, but one that uses the removal of an offender from public life. It also examines the changes in sentencing law, focusing on new indeterminate sentences and the extended sentence, as well as the provisions for control of dangerous prisoners through early release procedures and through preventive orders. It also considers the dangerous mentally disordered offender.
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David Ormerod and John Child
This chapter deals with general complete defences that the accused can use to avoid liability. The focus is on defences that can apply (with one exception) to offences throughout the criminal law and will result in the accused’s acquittal. Five kinds of general complete defences are examined: insanity (as a defence), duress by threats, duress by circumstances, the public and private defence (also known as self-defence), and necessity. The chapter first considers the categorical division between excuses and justifications, before explaining the elements of each of the defences in turn. It then outlines potential options for legal reform concerning individual defences and concludes by discussing the application of the general defences to problem facts. Relevant cases are highlighted throughout the chapter, with brief summaries of the main facts and judgments.
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