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Personal Autonomy, the Private Sphere and Criminal Law : A Comparative Study - BLOOMSBURY ACADEMIC

Personal Autonomy, the Private Sphere and Criminal Law

A Comparative Study

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Containing original essays by a distinguished group of jurists from six different European countries, this book confronts the increasing range of legal and philosophical issues arising from the relationship between privacy and the criminal law. The collection is particularly timely in light of the incorporation into English law of the European Convention on Human Rights. It compares legal cultures and underlying assumptions with regard to the private sphere, personal autonomy and the supposed justifications for State interference through criminalization and the implementation of substantive criminal law. The book moves from treatment of general ideas like the relationship between sovereignty, the nation-state and substantive criminal law in the new European context, (with its concomitant aspiration towards the establishment of transnational morality) to more detailed consideration of specific areas of substantive law and procedure, viewed from a range of perspectives. Areas considered include euthanasia, surrogacy, female genital mutilation and sado-masochism.

Contributorsp. xiii
Table of Casesp. xv
Table of Legislationp. xix
Introductionp. 1
The comparative exercisep. 1
Why privacy now?p. 4
Justifications for state interventionp. 8
Internationalisation and harmonising tendenciesp. 9
International developmentsp. 9
The European Unionp. 10
The European Convention on Human Rights and Fundamental Freedomp. 11
Limiting the power of the state?p. 13
Criminal law as a solution for social problemsp. 15
Why is privacy such a weak right?p. 19
Legal Moralism or Paternalism? Tolerance or Indifference? Egalitarian Justice and the Ethics of Equal Concernp. 25
Usual prejudicesp. 25
Tolerance, permissiveness, indifferencep. 28
The norm of equal concern and the problem of implementationp. 29
Political neutrality and the enforcement of moralsp. 31
The classic liberal approachp. 31
Devlin's conventionalismp. 33
Social integration as a valuep. 35
Democratic objectivismp. 36
Political neutrality and ideals of the goodp. 38
The harm principle and justified paternalismp. 39
Perfectionism and anti-perfectionismp. 42
The politics of equal concernp. 46
Privacy, Autonomy and Criminal Justice Rights: Philosophical Preliminariesp. 49
The value of privacyp. 52
Privacy and autonomyp. 57
The right to privacyp. 65
Standard objections and popular misconceptionsp. 71
Privacy rights and criminal justicep. 75
The Public, the Private and the Significance of Paymentsp. 79
Introductoryp. 79
Criminal law classificationp. 79
Defining the private in criminal law and criminal justicep. 80
Locating privacy claims in English positive criminal lawp. 82
Markets and the hierarchy of exclusionary reasonsp. 87
Defining the paymentp. 89
Constructing the rational autonomous individualp. 91
Conclusions and agendap. 92
Sovereignty, Criminal Law and the New European Contextp. 93
The state, sovereignty and autonomyp. 93
Sovereigntyp. 94
Conceptual distinctionsp. 96
The public and the privatep. 98
European Unionp. 100
The first pillarp. 101
Primary EC law and economic freedomsp. 101
Secondary EC law: EC sanctionsp. 103
EC law: institutional aspectsp. 109
The third pillarp. 110
EU and private sphere/ private autonomyp. 113
Sovereigntyp. 115
The State and the Nation's Bedrooms: the Fundamental Right of Sexual Autonomyp. 117
Introductionp. 117
The paradox of individual autonomy and democratic societyp. 120
The European Court of Human Rights on the limits of sexual autonomyp. 123
Homosexualityp. 124
Sadomasochismp. 127
Equality rights and autonomyp. 129
Autonomy and the rights and interests of othersp. 132
The limits of sexual autonomy: coercion and consentp. 134
Consent to what?p. 135
Consent and submissionp. 136
Sexual autonomy, the problem of public space and the limits of consentp. 137
Human Rights and the Criminalisation of Tradition: the Practices Formerly Known as "Female Circumcision"p. 139
Introductionp. 139
General definitions of FC/FGMp. 140
Human rights, criminal law and FC/FGMp. 142
Criminal law penalties and enforcementp. 153
Conclusionp. 157
Denying Shoahp. 161
The Auschwitz Liep. 161
Developments in national and in international lawp. 164
The approach of human rights bodies: arguments in favour of criminalisationp. 169
Freedom of speech in the United States: arguments against criminalisationp. 173
Concluding observationsp. 177
Criminal Legislation in the Nineteenth Century: the Historic Roots of Criminal Law and Non-Intervention in the Netherlandsp. 181
Introductionp. 181
Criminal legislation in the nineteenth centuryp. 184
The 1886 Criminal Code: leading principlesp. 188
The compilers of the 1886 Criminal Code on the private sphere and personal autonomyp. 194
Conclusions on modern developments in the Netherlandsp. 197
Consent in Dutch Criminal Lawp. 205
Basic essentials of Dutch criminal lawp. 205
Fields of criminal law where consent is relevantp. 207
Offences only prosecuted if a complaint is filedp. 208
Pornography and matters of public decencyp. 209
Sexual acts under duress or involving violencep. 211
Voluntary submission to violence in generalp. 213
Conduct of the medical professionp. 213
Euthanasiap. 214
Conclusionp. 220
Danger Ousness, Popular Knowledge and the Criminal Law: a Case Study of the Paedophile as Sociocultural Phenomenonp. 223
Introductionp. 223
Constructing the paedophile: public protest and the release of sex offenders from prisonp. 224
The dangerous individual: risk, popular knowledge and the rule of lawp. 230
The dangerous individual, risk and the fear of crimep. 230
Popular knowledge and the rule of lawp. 234
Childhood, parenthood and gender: (re) constructing the paedophile as otherp. 237
Vulnerable childhood, anxious parenthood and the dangerous masculinep. 238
Concluding remarksp. 241
The Fight Against Sex With Childrenp. 245
Introductionp. 245
Back to the closetp. 246
Reactions of societyp. 247
Sex with children and the criminal statutesp. 249
Indecency is time-relatedp. 250
Abolition of the complaint requirementp. 250
Child pornography in the criminal statutesp. 252
The rationale behind the child pornography articlep. 253
Increasing the age limit for child pornographyp. 256
The enforcement of sentences and its aftermathp. 257
The questionable role of the probation servicep. 259
Lifelong monitoring and social isolationp. 260
Paedophile sex and child pornography in the light of morality and lawp. 263
Indexp. 267
Table of Contents provided by Syndetics. All Rights Reserved.

ISBN: 9781901362824
ISBN-10: 1901362825
Audience: BAC
Format: Hardcover
Language: English
Number Of Pages: 304
Published: 19th March 2001
Country of Publication: GB
Dimensions (cm): 23.39 x 15.6  x 1.75
Weight (kg): 0.59
Edition Number: 1