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Friday, January 10, 2014

Dubber's Introduction to "Foundational Texts in Modern Criminal Law"

Professor Markus Dubber has posted his introduction to a forthcoming volume called Foundational Texts in Modern Criminal Law. The book contains a series of essays on important figures in the intellectual history of criminal law--spanning Hobbes, Beccaria, Blackstone, Bentham, Kant, Feuerbach, Hegel, JMF Birnbaum, Mill, Stephen, Pashukanis, Gustav Radbruch, Wechsler, Glanville Williams, HLA Hart, Becker, Foucault, Nils Christie, and Günther Jakobs. You can find some of the primary texts considered on this very helpful page. In the cases of Birnbaum, Radbruch, and Jakobs (and I think also Feuerbach, but I am not certain about this), there are first-time English translations from the German of the works considered. There are also very interesting lesser known works of some of the better known authors. For example, do check out Beccaria's little algebraic gem, "An Attempt at an Analysis of Smuggling." The first paragraph alone is wonderful. I was delighted to contribute to this project with an essay on JF Stephen (my essay focuses on his History of the Criminal Law of England), an early draft of which is here.

Markus uses the introduction to discuss certain thematic threads in a massive work like this. Here are some of his interesting reflections (after the break) with respect to the organizing perspective of the book. I particularly appreciated his comments about developing a canon of texts in the field:

Criminal law discourse has become, and will continue to become, more international and comparative, and in this sense global: the long-standing parochialism of criminal law scholarship and doctrine is giving way to a broad exploration of the foundations of modern criminal law in the new lingua franca of legal scholarship, English. The present book seeks to advance this promising scholarly and doctrinal project by making available key texts, including several not previously available in English translation, from the common law and civil law traditions, accompanied by contributions from leading contemporary representatives of both traditions.

Global discourse on criminal law needs a common foundation of texts, if not of principles. Eventually, scholars from throughout the world will be able to draw on a shared fundus of materials, and of concepts, that define the discipline and shape academic discourse, while at the same time, as in any other discipline, being subjected to constant challenge and reconstruction. A canon of key texts, however contested, forms part of the scholarly infrastructure of a global discipline, along with common journals, monograph series, reference works, informal and formal networks, as well as compatible curricular programs grounded in a basic vision or visions, however general or abstract, of the field of study as a whole.

Eventually, contributors to the global discipline of criminal law, no matter what their institutional or national affiliation, would be expected to have grappled with a common corpus of texts and concepts. In a global environment, it makes no sense that a budding criminal law scholar at an English institution would be unfamiliar with the key texts that structure the intellectual worldview of her colleague at a German institution, or vice versa. (To see this point, substitute “political science” or “psychology” or “philosophy” or “chemistry” for “criminal law.”) The point is not that there cannot, or should not, be scholarly traditions or “schools” (which may or may not be tied to a country, a city, an institution, a department, or even an individual or group, or coffee shop), but that they should operate within a shared discourse, a common discipline, however fluid and self-critical. 

Posted by Marc DeGirolami on January 10, 2014 at 08:27 AM | Permalink


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