bluuebunny/crossref_metadata_2025 huggingface dataset:
1. Introduction
Authors: Morgan Polly
Published: September 2021

Family law is more often than not associated in people's minds with negative times in their lives such as relationship breakdowns, childcare disputes, and financial problems relating to family life. However, from a legal perspective, family law is a fascinating area of law as no two cases are ever the same. There are so many issues that need to be considered: Who does family law protect? Who does family law fail to protect? What human rights affect family law? How far should rules extend into people's intimate relationships? This chapter asks all of these questions and presents the focus of the chapters to come.
5. Cohabitants and Remedies Not Dependent on Marriage
Authors: Morgan Polly
Published: September 2021

Marriage is not the only way that couples can live together. The term for living together without marriage or civil partnership is cohabiting. The numbers for people cohabiting rather than living in marriage or civil partnership is increasing. The acceptance of cohabitation across all age groups has risen also. Irrespective of the nature and duration of the cohabitation, there exist in the law a vast difference between the position of cohabitants and those of married couples when a relationship breaks down and in terms of law and legal rights. This chapter looks at what the differences are and what remedies are available to cohabiting partners who suffer a relationship breakdown. Unfortunately, the government appears to have no plans to reform this area of law.
The Oxford Textbook on Criminology
Authors: Case Steve , Johnson Phil , Manlow David , Smith Roger , Williams Kate
Published: September 2021

This book is the essential companion to exploring crime and criminal justice. It provides authoritative yet accessible coverage of all key topics of criminology, with a vibrant, student-focused approach that converts curiosity into critical analysis and students into criminologists. Its full coverage of today’s most pressing criminological issues includes chapters on global criminology (exploring organised crime, drug trafficking, people smuggling, cybercrime, and terrorism), social harm, and green criminology. The book also provides practical, focused guidance on beginning criminological studies and applying criminological knowledge to research, careers, and further study. The authors’ explanations are continually brought to life by the voices and experiences of a wide variety of people connected to criminology and the criminal justice system, from students and academics to prison officers and crime victims.
4. How criminology produces knowledge
Authors: Case Steve , Johnson Phil , Manlow David , Smith Roger , Williams Kate
Published: September 2021

This chapter investigates how researchers create knowledge in criminology. It covers two themes: first, the empirical research methods used in the discipline, and how understanding and knowledge of crime can be developed by applying, analysing, and evaluating criminological information. Secondly, the chapter discusses how this knowledge and understanding is influenced by the three important and interlinking factors of subjectivity (personal and disciplinary perspectives and opinions), supposition (guesswork, assumption), and study (for example, scholarship and conducting empirical and other types of research). ‘Empirical methods’ are the generation of evidence through (sensory) experience, particularly using experiments and observations. The chapter looks at the different research methods available to criminologists, covering both primary and secondary sources.
9. Youth offending and youth justice
Authors: Case Steve , Johnson Phil , Manlow David , Smith Roger , Williams Kate
Published: September 2021

This chapter describes youth offending and youth justice: that is, offending behaviour committed by children and young people and how they are treated in the Youth Justice System. Society’s assumptions about what it means to be a child and what should be expected of children and young people in terms of their development and behaviour shape its views on and responses to youth offending. The chapter then looks at how the concepts of ‘childhood’ and ‘youth’ have been seen, theorised, and socially constructed over time, before moving on to consider explanations for youth offending and ‘delinquency’. Youth offending has tended to be explained in individualised terms, through developmental and psychological explanations. The chapter also evaluates the main formal responses to youth offending and assesses more progressive, contemporary approaches to youth offending and delivering youth justice.
12. Green criminology
Authors: Nurse Angus
Published: September 2021

This chapter studies green criminology, a strand of criminology that looks at crimes against the environment, animals, and non-human nature that are largely ignored by mainstream criminology. Green criminology takes a critical approach, looking beyond narrow, human-centred definitions of crime to consider a wider conception which some see as a form of social harm. Green criminologists examine a wide range of environmental issues, from wildlife crime, wildlife trafficking, animal rights, and species justice to corporate environmental crime and illegal pollution, ecological justice and ecocide, food crime, and the links between organised crime and the waste industry. The chapter looks at how environmental issues are sometimes neglected by markets, the criminological concepts and theoretical approaches associated with green criminology, and the debate about whether we should focus on green crimes or harms. It also considers how environmental harms are regulated and the different ways of responding to and policing green crimes.
17. Sociological positivism
Authors: Case Steve , Johnson Phil , Manlow David , Smith Roger , Williams Kate
Published: September 2021

This chapter examines sociological positivism, studying how society or social processes might affect behaviour. Decisions by governments and companies and sociological issues (such as poverty) affect individuals but may also affect whole communities; they may influence the likelihood of many people to choose to offend or be law-abiding. Therefore, the health of the economy or the rate of unemployment, for example, may influence the behaviour of an entire population not just one individual and so may lead to a rise or fall in criminal behaviour. If we can identify which factors in society influence crime, and how they do so, it may be possible to alter those social factors and so decrease criminal behaviour. The chapter looks at three types of sociological theory: social interaction or social process theories, social structural theories, and social conflict theories.
25. Criminal justice policies and practices
Authors: Case Steve , Johnson Phil , Manlow David , Smith Roger , Williams Kate
Published: September 2021

This chapter studies criminal justice policies, practices, and the people who work within the system. It begins by tracing the origins and influences of criminal justice policies. Criminal justice policies predominantly come from the government, but other organisations and individuals such as academics, the media, corporations, and lobbyists can influence them. The motivations behind these policy influencers may vary, but they all share the ultimate aim of ensuring that their preferred strategy is implemented in practice. The chapter then considers the significant impact that ‘penal populism’ can exert on policy, and how government policy is shaping the ways in which the ‘adversarial-lite’ principle is implemented. It assesses use of both of those policies in practice in the courtroom and the community to see how key principles can play out in reality. Finally, the chapter reflects on the effects of all the components upon the people who work in the criminal justice system.
26. Crime prevention
Authors: Case Steve , Johnson Phil , Manlow David , Smith Roger , Williams Kate
Published: September 2021

This chapter highlights crime prevention. Preventive strategies represent an approach that is less concerned with dispensing justice than with minimising the risk of crime being committed in the first place. Crime prevention strategies are thus based on a combination of assumptions about human motivations and research evidence about observed patterns of offending behaviour. The chapter then looks at the political and strategic factors that may influence decisions about which crimes to try to prevent. It considers perspectives on crime prevention focusing on potential offenders (in terms of deterrence and diversionary approaches), potential victims, and the idea of community safety and well-being. Finally, the chapter addresses some of the continuing and unresolved questions about the purported achievements and effectiveness of crime prevention strategies.
30. Alternatives to punishment
Authors: Case Steve , Johnson Phil , Manlow David , Smith Roger , Williams Kate
Published: September 2021

This chapter evaluates the alternative means of responding to offenders and their crimes which have emerged in criminal justice and have been gaining wider recognition. Those who favour innovations of this kind tend to reject conventional assumptions and approaches, proposing new principles for the operation of the justice system. The chapter considers two distinct but similar challenges to conventional models of justice which have developed from this viewpoint: restorative justice and diversion. Restorative justice is based on the presumption that dealing with crime is a process rather than a single act or decision, that it involves collaboration between those with a stake in the offence, and that it emphasises healing as well as ‘putting things right’. Diversionary interventions, which can include community service, restitution, and education, as well as elements of restorative practice, provide an opportunity for the offender to avoid criminal charges or formal judicial processes, albeit sometimes by meeting certain conditional requirements.
9. Prohibition of Ill-Treatment
Authors: Rainey Bernadette , McCormick Pamela , Ovey Clare
Published: September 2021

This chapter examines the prohibition of ill-treatment under the European Convention on Human Rights (ECHR). It discusses the provisions of Article 3 of ECHR and explains that the fundamental character of the prohibition is affirmed by the fact that no derogation in respect of its provisions is permitted even in time of war or public emergency. It considers the definition of ill-treatment as developed by the Court. The chapter analyses the judgments made by the Strasbourg Court in relevant cases including removal of a person from the State, investigations, and detention. It also explores evidential issues connected with proving conduct falling within Article 3 and considers the provisions of the European Convention for the Prevention of Torture.
12. The Right to a Fair Trial in Civil and Criminal Cases
Authors: Rainey Bernadette , McCormick Pamela , Ovey Clare
Published: September 2021

This chapter examines the provisions of the European Convention on Human Rights (ECHR) on the right to a fair trial in criminal and civil cases, explaining that Article 6 of ECHR holds that the Strasbourg Court has no jurisdiction to reopen national legal proceedings or to substitute its own findings of fact for the conclusions of national courts. The chapter examines the interpretation by the Strasbourg Court of the protections provided by Article 6 in the extensive jurisprudence on this Article and discusses issues concerning the overall requirements of a fair hearing, right of access to court, and the extraterritorial effect of Article 6.
14. Limitations Common to Articles 8 to 11
Authors: Rainey Bernadette , McCormick Pamela , Ovey Clare
Published: September 2021

This chapter analyses the limitations found in the second paragraphs of Articles 8 to 11 of the European Convention on Human Rights (ECHR), including the interests of national security, the interests of territorial integrity, the interests of public safety, the economic well-being of the country, the prevention of disorder or crime, the protection of health or morals, the protection of the reputation of others, the protection of the rights or freedoms of others, the prevention of the disclosure of information received in confidence, and maintaining the authority and impartiality of the judiciary. It discusses the application of the limitations in these Articles in the decisions made by the Strasbourg Court, and considers the required legal basis for interference, the legitimate aims of interference, the margin of appreciation doctrine, and the doctrine of proportionality.
24. Freedom from Discrimination
Authors: Rainey Bernadette , McCormick Pamela , Ovey Clare
Published: September 2021

This chapter examines the protection of the freedom of discrimination in the European Convention on Human Rights, discusses the provisions of Article 14 and Protocol 12, and explains the issues to consider in evaluating allegations of violations of Article 14. It highlights the problems in the application of Article 14 and suggests that the range of ratifications to Protocol 12 does not suggest that the development of a generic equality law under the Convention is foreseeable. The chapter also analyses the judgments made by the Strasbourg Court in relation to Article 14 and Protocol 12. It notes the development of indirect discrimination and the Court’s increasing use of ‘stereotyping’, intersectionality, and vulnerability in its judgments.
10. Visitors: entry for temporary purposes
Authors: Clayton Gina , Firth Georgina , Sawyer Caroline , Moffatt Rowena
Published: September 2021

This chapter discusses the law relating to individuals coming to the UK as visitors for short-term or finite purposes such as tourism, business visits, sporting and entertainment engagements, or for private medical treatment. There is a discussion of the withdrawal, reinstatement, and restriction of rights of appeal for those visiting family members in the UK, and the application of Article 8 ECHR to these situations. The revised visitor rules in Appendix V are described in detail. The chapter also discusses the special cases of marriage visitors, carers and transit visitors, and general conditions such as prohibited activities and the need for maintenance and accommodation.
15. Deportation
Authors: Clayton Gina , Firth Georgina , Sawyer Caroline , Moffatt Rowena
Published: September 2021

This chapter gives a brief history of the power of deportation. It then discusses in some detail the application of the ground that the deportation is conducive to the public good. This includes discussion of so-called automatic deportation under the UK Borders Act 2007, and of national security cases. The chapter also covers the Immigration Act 2014 provisions relating to deportation.
5. Crimes of strict liability
Authors: Ormerod David , Laird Karl
Published: September 2021

Offences of strict liability are those crimes that do not require mens rea or even negligence as to one or more elements in the actus reus. Where an offence is interpreted to be one of strict liability, the accused will be criminally liable even if he could not have avoided the prescribed harm despite attempting to do so. Where someone is accused of strict liability, it is not necessary for the prosecution to tender evidence of mens rea as to the matter of strict liability. This chapter discusses strict liability and its distinction from ‘absolute’ liability, crimes of strict liability in common law and statutes, strict liability and the presumption of innocence, the presumption of mens rea, the severity of punishment for strict liability, arguments for and against strict liability, the imposition of liability for negligence and statutory due diligence defences.
12. Murder
Authors: Ormerod David , Laird Karl
Published: September 2021

Murder is generally regarded as the most serious crime (apart perhaps from treason) in England and Wales, yet it has not been defined by statute. Anyone of sound memory and of the age of discretion can commit murder, but a corporation or other organization cannot be tried for murder because it cannot be sentenced to life imprisonment, the only penalty allowed by law. This chapter discusses the offence of murder, who can commit murder, where it can be committed, who can be the victim and whether killing a foetus/child in the womb or in the process of leaving the womb is murder. It also examines whether a dead person is capable of being murdered, unlawful killing as an important element of murder, the mens rea of murder or ‘malice aforethought’, constructive malice, the sentence for murder and the Law Commission’s proposed reforms for the offence of murder.
18. Theft
Authors: Ormerod David , Laird Karl
Published: September 2021

In English law, offences related to dishonesty are governed by the Theft Acts 1968 and 1978, the Theft (Amendment) Act 1996 and the Fraud Act 2006. These Acts are not a restatement of the common law and its numerous statutory additions but they do provide a code of the most important offences of dishonest dealing with the protection of property (with the notable exception of forgery and conspiracy to defraud). This chapter deals with the offence of theft. It offers a detailed review of the concept of dishonesty in the light of the redefinition of that concept by the Supreme Court in Ivey v Genting Casinos and its acceptance in Barton.
1. Aims, themes, and structure
Authors: Partington Martin
Published: September 2021

This chapter sets out the basic aims, themes, and structure of this book which are to provide an introductory account of the English legal system, to note how it has developed in recent years, and to consider how it may develop in future. Part II raises fundamental issues about the social functions of law and the legitimacy of law; and considers the institutional framework within which law is made. Part III looks at the different contexts in which law is developed and practised. Part IV looks at the provision and funding of legal services. Finally, Part V offers reflexions on a system in flux.
4. Shaping the legal system: the role of government
Authors: Partington Martin
Published: September 2021

This chapter considers the principal government departments that shape the English legal system. Over the years, the Government has become increasingly involved in the English legal system. The leading department is the Ministry of Justice, which is responsible for running and developing the courts and tribunals system. The chapter provides an overview of its functions. It also considers the Judicial Office, the Judicial College, and the Law Commission. The Home Office is responsible for many aspects of criminal justice policy. Mention is also made of the Department for Business, Energy and Industrial Strategy, and other central government departments whose work impacts on the legal system.
2. Constitutional Organisations, Institutions, and Roles
Authors: Webley Lisa , Samuels Harriet
Published: September 2021

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter describes the UK’s main constitutional bodies or offices and their roles. The state’s institutions and offices are linked to the three main powers at work within it: executive power, legislative power, and judicial power. The Queen is the head of state for the United Kingdom of Great Britain and Northern Ireland and heads the three branches of the state, although she is a constitutional monarch and her power is subject to constitutional limits. The executive is an umbrella term that describes two different entities: the political executive and the wider machinery of the government. The political executive contains the Prime Minister and government ministers. The wider machinery of government involves the collection of people who keep the country running, which includes the civil service, the police, the armed forces, members of executive agencies such as the Prison Service, and the welfare benefits system. Parliament is the body tasked with law-making, the scrutiny of Bills, and holding the executive accountable. The courts oversee the operation of the rule of law by reviewing actions, omissions, and decisions taken by the executive to ensure that they are legal, rational, and procedurally proper and that they comply with the terms of the Human Rights Act 1998. The chapter concludes with a discussion of elections to the Westminster Parliament—the mechanism through which MPs are elected and other ways in which those elections could be run.
5. The Separation of Powers
Authors: Webley Lisa , Samuels Harriet
Published: September 2021

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. The separation of powers is a theory or a doctrine that describes how a state organizes the distribution of power and function between its different branches. It is often used as an umbrella term to denote the extent to which the three ‘powers’ in, or branches of, the state are fused or divided—that is, the legislative, the executive, and the judicial powers. This chapter begins by sketching the history of the separation of powers in the UK. It then discusses the purpose of the separation of powers; the similarities and differences between different theories of the separation of powers; the impact of recent constitutional reform on the operation of the separation of powers in the UK; how courts have interpreted the separation of powers; and the relevance of the separation of powers today, including in the context of the balance of power between the executive and Parliament as regards the UK’s decision to exit the European Union.
6. The Crown and Royal Prerogative
Authors: Webley Lisa , Samuels Harriet
Published: September 2021

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. The royal prerogative is a special form of common law that may be exercised by the Crown, either through the Queen as monarch (her personal prerogative) or through the executive as Her Majesty’s government (the political prerogative). This chapter begins by tracing the history and development of the royal prerogative and the role of the Crown in the exercise of these powers, and then addresses the division between prerogative powers that are personally exercised by the Queen and those that are exercised on her behalf by the political executive. Next, it turns to the respective roles of Parliament and the courts in the operation and development of prerogative powers, considering the relevance of those powers today and proposals for reform, in part, in the context of the case study on the use of the royal prerogative to trigger article 50 to begin the process of withdrawal from the European Union (EU), as well as the government’s advice to the monarch to prorogue Parliament in the run up to the UK’s exit from the EU.
13. Justice in the Modern Administrative State
Authors: Webley Lisa , Samuels Harriet
Published: September 2021

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the role of a range of accountability methods to scrutinize the executive’s use of power. This includes the work of the Parliamentary Commissioner for Administration, who is now also known as the Parliamentary Ombudsman, the role of tribunals in contrast to courts, of public inquiries and of alternative dispute resolution mechanisms too. It also examines the limitations of each of these methods, and how they may complement each other to provide different forms of scrutiny.
14. The Role of the Courts, Judicial Review, and Human Rights
Authors: Webley Lisa , Samuels Harriet
Published: September 2021

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. The court is tasked with checking the legality of government action, which is mainly done through the process known as judicial review. Judicial review is a special form of court process that calls the executive to account for its exercise of power. This chapter discusses the history of judicial review; the grounds of review; the judicial review of delegated legislation; judicial review and the constitution; the difference between judicial review and appeal; the role of the courts and the Human Rights Act 1998; the judicial review procedure; and the extent to which judicial review can act as a check on executive power.
15. The Parties to a Judicial Review: Who Can Make a Claim for Judicial Review and Against Whom Can a Claim for Judicial Review Be Made?
Authors: Webley Lisa , Samuels Harriet
Published: September 2021

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the bodies subject to judicial review and who can make claims for judicial review. An action for judicial review can be brought only against a body exercising a public function. If public authorities are carrying out a private function, they are not subject to judicial review, unless there is a public law element. Private bodies are, generally, not subject to judicial review unless it can be shown that they are carrying out a public function, such as administering a statutory scheme. If the judicial review concerns human rights, then the claim must be brought against a public authority. The Human Rights Act 1998 creates two kinds of public authorities: core public authorities and functional public authorities. Core public authorities are public authorities, such as government departments and the police force. Functional public authorities have private and public functions, but only their public functions are subject to the Act. The rules of standing in judicial review cases determine whether individuals or groups are permitted to challenge a decision of a public body. An individual or organization may bring a claim for judicial review only with the permission of the courts, which means that standing restricts the people and organizations that may bring a judicial review claim.
3. Offer and acceptance: bilateral contracts
Authors: Davies Paul S.
Published: September 2021

This chapter analyses the key elements traditionally required for the formation of a bilateral contract. Contracts are bargains. The natural way to make a bargain is for one side to propose the terms and the other to agree to them. So contracts are almost invariably made by a process of offer and acceptance. However, the lack of offer and acceptance does not necessarily preclude the existence of a contract, if a bargain can be discerned from the facts in some other way. The chapter begins by explaining what constitutes an offer, and discusses various common scenarios. It then examines the requirements of acceptance, since this is what is required for a contract to be concluded. It considers the possibilities that an offer might be revoked by the offeror; or rejected by the offeree; or the offeree might ask for further information; or the offer might lapse.
25. Conditions, warranties, and innominate terms
Authors: Davies Paul S.
Published: September 2021

If a party fails to perform a promise in a contract, it is in breach and liable to pay damages. But some breaches of contract not only entitle the injured party to claim damages, but also to put an end to the contract. The nature of the term becomes important when considering the right to terminate. This chapter discusses the meaning and scope of conditions, warranties, and innominate terms. A party may terminate a contract for breach of condition, but never for breach of warranty. Terms that are neither conditions nor warranties are called ‘innominate’ terms. It may be possible to terminate a contract for breach of an innominate term if the breach is sufficiently serious. Breaches which justify termination are often called ‘repudiatory breaches’. The chapter also considers express termination clauses and another difficult sense in which the term ‘condition’ is used, namely to denote an ‘entire obligation’.
2. Parliamentary Sovereignty
Authors: Loveland Ian
Published: September 2021

This chapter examines the ways in which parliamentary sovereignty has been both criticised and vindicated in more recent times, first discussing A V Dicey’s theory of parliamentary sovereignty, which has two parts—a positive limb and negative limb. The principle articulated in the positive limb of the theory is that Parliament can make or unmake any law whatsoever. The proposition advanced in the negative limb is that the legality of an Act of Parliament cannot be challenged in a court. The negative and positive limbs of Dicey’s theory offer a simple principle upon which to base an analysis of the constitution. The chapter then discusses the legal authority for the principle of parliamentary sovereignty and reviews challenges to Dicey’s theory.
5. The House of Commons
Authors: Loveland Ian
Published: September 2021

This chapter examines the relationship between the government and the House of Commons, in order further to develop arguments concerning the doctrines of parliamentary sovereignty and the separation of powers within the contemporary constitution. Consideration is given both to the role played by the House of Commons within the legislative process and its effectiveness as a means to provide scrutiny of and challenges to the ways in which the government exercises its statutory and prerogative powers. The chapter argues that, for most of the modern era, the House of Commons has been a body in which party politics is the dominant determinant both in the legislative process and in respect of executive accountability and asks if we should accept that the Commons is manifestly now a factional rather than national assembly for most purposes. But it is also suggested that it would be premature to conclude that the constitution permits factional concerns to determine both the content of legislation and the parliamentary accountability of government behaviour.
9. Constitutional Conventions
Authors: Loveland Ian
Published: September 2021

This chapter assesses the nature and purpose of constitutional conventions. The discussions cover the concepts of collective and individual ministerial responsibility; the relationship between the Monarch and her Ministers; the relationship between convention, statute, and the common law; the ‘Ponsonby rule’ and the Constitutional Reform and Governance Act 2010. It is argued that the concentration of effective political power is often very intense, even within a political party; small groups of senior Ministers or even the Prime Minister alone may occasionally be, to all intents and purposes, ‘elected dictators’.
14. Procedural Grounds of Judicial Review
Authors: Loveland Ian
Published: September 2021

This chapter examines the procedural grounds of judicial review. It discusses how the courts have used the procedural fairness doctrine by reviewing a number of leading cases to identify the values that appear to be shaping the content of the law. The analysis focuses primarily on case law drawn from the ‘modern’ (ie post-1960) era, but several seminal decisions from earlier periods are also considered. The concept of procedural fairness has generated a vast body of case law in the modern era and will continue to do so in future. But the law on this point, even when seen in conjunction with the law relating to the traditional substantive grounds on which government action can be held unlawful, offers only a partial picture of the way in which administrative law fits into the broader constitutional principles of the rule of law and the sovereignty of Parliament.
22. A Revolution by Due Process of Law?
Authors: Loveland Ian
Published: September 2021

This chapter analyses the conduct and constitutional implications of the United Kingdom’s proposed withdrawal from the European Union. The chapter begins by examining the legal basis, conduct, and result of the withdrawal referendum. The chapter then assesses the High Court and Supreme Court decisions in the first of the two Miller judgments. It continues with a discussion on the extreme positions of ‘hard brexit’ and ‘soft brexit’ and the assesses the significance of the results of the unexpected 2017 general election. The chapter goes on to examine the European Union (Withdrawal) Act 2018 and the subsequent fall of the May government and its replacement by an administration led by Boris Johnson. In the final part of the chapter the Miller (No 2) and Cherry litigation and its political aftermath are discussed in full, with a particular focus laid on the controversial way in which the Supreme Court deployed the notion of ‘justiciability’ in its judgment in Miller (No 2).
Criminology
Authors: Jones Stephen
Published: September 2021

This expanded seventh edition of Criminology provides the reader with a clearly expressed and concise analysis of the main sociological and psychological theories of crime and deviance. It is written on the basis that, to facilitate understanding, it is necessary to provide a full account of the historical background and development of these theories. The book also contains an extensive discussion of the perception and nature of crime. It has been completely updated with the significant developments in key areas, such as criminal statistics and the latest research in the scientific study of behaviour. The book is written in a clear and readable style that helps students understand even complex aspects of criminology. In drawing on a wide range of research, the author seeks to ask the right questions, rather than provide definitive answers. The book is thoroughly referenced, providing plenty of opportunity for further reading for those interested in researching the area in more detail.
11. Theories of control
Authors: Jones Stephen
Published: September 2021

This chapter discusses the significance of control in the operation of society, which has been recognised by philosophers and writers for many centuries. Control is an aspect of most theories of crime and deviance, but it has not, until comparatively recently, been studied in its own right as a significant causal feature of crime and deviance. One possible reason for this is that criminologists were reluctant to research into ideas that so clearly support discipline and regulation, particularly in the liberal climate of the early 1960s. Also, the pathological undertones of the theory were unappealing to the sociologists, who had largely come to replace the psychologists at the forefront of criminological writing. Furthermore, perhaps the importance of control was thought to accord with general common sense and criminologists, in attempting to provide a mystique in order to have their discipline taken more seriously, preferred to concentrate on less obvious phenomena.
12. Gender and crime
Authors: Jones Stephen
Published: September 2021

This chapter discusses the extensive consideration given to the different roles played by men and women in the commission of crime. Feminist writers first highlighted the fact that most criminologists, in assuming that crime is a male phenomenon, had largely ignored female crime. If it was discussed at all, the focus was on the biological given of sex, rather than the social construction of gender. A number of writers have also started to consider the part that different assumptions of male gender roles—‘masculinities’—play in the commission of crime. Different explanations have been offered for the earlier neglect of women’s crime. One reason may be that official criminal statistics have routinely shown that women are convicted of crimes to a far lesser extent than men.
2. Burden and Standard of Proof
Authors: Choo Andrew L-T
Published: September 2021

Chapter 2 is divided into two parts. The first part is concerned with the manner in which a dispute as to which party bears the burden of proving a particular issue in a trial should be resolved. The question may arise in a criminal trial as to whether it is the prosecution or defence which bears the burden of proving a certain issue, and in a civil trial as to whether it is the claimant or defendant who bears the burden of proving a certain issue. The second part focuses on the standard to which the burden of proving a particular issue requires to be discharged.
7. Investigatory Impropriety
Authors: Choo Andrew L-T
Published: September 2021

Chapter 7 examines two further examples of the interplay between the principles of evidence and pre-trial practices and procedures. The first part looks into the evidential consequences of pre-trial violations of the European Convention on Human Rights. The second part considers the implications of the use of undercover police operations.
1. Constitutional History
Authors: Schütze Robert
Published: September 2021

This introductory chapter assesses whether there is a European constitution. When examined in the light of the broader historical tradition, the European Union has a constitution. And this view firmly corresponds to the self-understanding of the European legal order. The ‘real’ problem of the European Union is not whether there is a European constitution, but rather that there is ‘too much constitutional law’; the European Treaties alone contain 413 articles. Length is unfortunately not the only problem of the European constitution, for unlike more mature legal orders, the European constitutional order still struggles with its ‘vocabulary’. The semantic confusions are partly the result of the constant legal revolutions within the European Union. This book then aims to reflect the judicial and legislative practice of the Union as at October 31, 2020. It provides a guide through the most important theories and realities of the European Union law.
2. Constitutional Nature
Authors: Schütze Robert
Published: September 2021

This chapter discusses the nature of the European Union, presenting two—opposing—‘federal’ traditions that have been competing with each other over the past 200 years. It begins by introducing the US federal tradition, which has historically understood a Union of States as a third form of political organization between international and national law. The chapter then moves to the newer German federal tradition. Insisting on the indivisibility of sovereignty, this second tradition ultimately led to the following conceptual distinction: a ‘Union of States’ is either an international organization—like the United Nations—or a nation State—like Germany or the United Kingdom. Finally, the chapter applies both theories to the European Union. From the perspective of the older US tradition, the European Union can be seen as a Federation of States. The German tradition, by contrast, reduces it to a (special) international organization. Which is the better theory here? If legal theories are meant to explain legal practice, one sees that the second theory—insisting on the idea of State sovereignty—runs into serious explanatory difficulties and should consequently be discarded. The European Union is indeed best understood as a ‘Federation of States’.
3. Governmental Structure
Authors: Schütze Robert
Published: September 2021

This chapter examines the internal composition, internal powers, and internal procedures of the European Parliament, the European Council, and the Council of Ministers. It begins by looking at the role of the separation-of-powers principle in the European Union. Unlike the US Constitution, the EU Treaties do not discuss each institution within the context of one governmental function. Instead, each institution has ‘its’ article in the Treaty on European Union, whose first section then describes the combination of governmental functions in which it partakes. The European Treaties have thus ‘set up a system for distributing powers among different [Union] institutions’. And it is this conception of the separation-of-powers principle that informs Article 13(2) TEU. The provision is thus known as the principle of interinstitutional balance.
17. Competition Law
Authors: Schütze Robert
Published: September 2021

This chapter assesses the EU competition law on private undertakings. The relevant Treaty section is here built upon three pillars. The first pillar deals with anticompetitive cartels and can be found in Article 101 of the Treaty on the Functioning of the European Union (TFEU). The second pillar concerns situations where a dominant undertaking abuses its market power and is found in Article 102. The third pillar is unfortunately invisible, for when the Treaties were concluded, they did not mention the control of mergers. This constitutional gap has never been closed by later Treaty amendments, yet it has received a legislative filling in the form of the EU Merger Regulation.
2. Natural law and morality
Authors: Wacks Raymond
Published: September 2021

This chapter discusses the relationship between the ancient classical theory of natural law and its application to contemporary moral questions. It considers the role of natural law in political philosophy, the decline of the theory of natural law, and its revival in the twentieth century. The principal focus is on John Finnis’s natural law theory based largely on the works of St Thomas Aquinas. The chapter posits a distinction between ‘hard’ and ‘soft’ natural law, examines the notion of moral realism, and examines the tension between law and morality; and the subject of the moral dilemmas facing judges in unjust societies.
4. Modern legal positivism
Authors: Wacks Raymond
Published: September 2021

This chapter explores the works of some of the leading exponents of contemporary legal positivism: H. L. A. Hart, Hans Kelsen, Joseph Raz, Jules Coleman, Scott Shapiro, and others. Hart staked out the borders of modern legal theory by applying the techniques of analytical (and especially linguistic) philosophy to the study of law. Kelsen may be the least understood and most misrepresented of all legal theorists. To the extent that he insisted on the separation of law and morals, what ‘is’ (sein) and what ‘ought to be’ (sollen), Kelsen may legitimately be characterized as a legal positivist, but he is a good deal more. Raz argues that the identity and existence of a legal system may be tested by reference to three elements: efficacy, institutional character, and sources. Thus, law is autonomous: we can identify its content without recourse to morality.
6. Legal realism
Authors: Wacks Raymond
Published: September 2021

This chapter first addresses the question: What are realists realistic about? It discusses how this movement had little time for ‘theory’, and regarded the essence of law as what courts actually do in practice. The leading exponents of American realism: Oliver Wendell Holmes Jr, Karl Llewellyn, and Jerome Frank are discussed. They have been criticized for their obsession with courts, juries, lawyers and other features of the legal system, but are regarded as an important bridge to the sociological approach to law. The chapter then examines the Scandinavian realists: Alf Ross and Karl Olivecrona whose approach, while it is described as ‘realist’, is markedly different from their American counterparts. The relationship between Scandinavian realism and psychology is briefly considered.
9. Theories of justice
Authors: Wacks Raymond
Published: September 2021

Theories of justice are at the heart of any serious analysis of law and the legal system. They are an important feature of moral, political, and legal theory. From the Greeks to the present day the question of what constitutes a just society is a fundamental philosophical and practical concern. The disparities in wealth and living conditions between rich and poor countries generates a need for ‘global justice’ that applies to the world at large. This chapter analyses several theories of justice: utilitarianism; the related economic analysis of law; John Rawls’s influential theory of ‘justice as fairness’; Robert Nozick’s ‘entitlement theory’ of justice; the concept of equality; and the novel ‘capability’ approach.
5. Duty of care IV: public authorities
Authors: Witting Christian
Published: September 2021

This chapter considers the liability in negligence of public authorities such as government departments and schools. It commences by examining typical features of public authorities, including their statutory and public dimensions. It then considers the tests that courts have used to determine whether they can claim jurisdiction to hear cases involving public authorities—ie, the issue of justiciability. If the court can exercise jurisdiction, then the next issue that arises is the application of the Caparo Industries v Dickman three-stage framework for duty which, in cases of public authorities, requires paying special attention to policy reasons for either recognising or excluding duties of care.
6. Breach of duty
Authors: Witting Christian
Published: September 2021

This chapter examines breach of duty in negligence. It discusses the factors that courts consider in determining whether defendants are in breach of their duties of care to claimants. In each case, these factors include the foreseeability of harm to the claimant, the appropriate standard of care owed by the defendant to the claimant, and the conduct of the defendant in comparison to the expected standard of care. This chapter suggests that the question of whether the defendant has breached a duty of care is a mixed one of law and fact and that the standard of care required of the defendant is an exclusively legal construct and based on the standard of a hypothetical reasonable person. The chapter considers also special issues involving proof of breach, most importantly in the application of the res ipsa loquitur doctrine.
7. Causation and remoteness
Authors: Witting Christian
Published: September 2021

This chapter examines the issues of causation and remoteness in negligence, which basically concern the links between breaches of duty and the consequences of those breaches and the strength of those links. The chapter considers in detail causation in fact, causation in law, and remoteness of damage. We find that courts have developed several important exceptions to the ordinary ‘but for’ test of factual causation, including the Fairchild principle. Fairchild can be considered as a departure from the normal requirement that the claimant must prove factual causation of damage. Legal causation is tested by looking for unexpected events called novi actus intervenientes. Remoteness is an issue of foreseeability of damage.
11. Wrongful interference with goods
Authors: Witting Christian
Published: September 2021

This chapter examines the protection provided by tort law against wrongful interference with goods, which generally protect possession rather than title to goods (or ownership) as such. It explains that the action for trespass to goods affords a remedy where there has been an intentional or careless direct interference with goods in the claimant’s possession at the time of the trespass. This chapter also considers conversion, which is concerned with intentional dealings with goods that constitute a denial of the claimant’s rights. It discusses the remedies available for torts to goods contained in the Torts (Interference with Goods) Act 1977.
17. Nuisance
Authors: Witting Christian
Published: September 2021

This chapter examines the torts of private and public nuisance. It explains that the tort of private nuisance protects rights in the use of land, rights in the enjoyment of land, and rights in land itself. It permits actions with respect to physical interference with land as well as with sensible personal comfort in its use and enjoyment. The chapter highlights the difficulty in establishing whether private nuisance constitutes a tort of strict liability. This chapter also discusses the elements of public nuisance, which again is a difficult tort to analyse but which is concerned with interference with public rights, such as the right to pass and re-pass along the highway.