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Methods And Severity: The Two Tracks Of Section 12, Benjamin Berger, Lisa Kerr
Methods And Severity: The Two Tracks Of Section 12, Benjamin Berger, Lisa Kerr
Articles & Book Chapters
This paper argues that there are two main routes – two tracks – by which one can arrive at the fundamental wrong at the heart of section 12 of the Charter. On the “methods track”, the state can run afoul of section 12 by using intrinsically unacceptable methods of treatment or punishment. For historical reasons, jurisprudence on this track is not well developed in Canada, though it would clearly prohibit the death penalty and most methods of corporal punishment. On the “severity track”, the concern is with excessive punishment. Here, even where the state has chosen a legitimate method of …
Working Time, Dinner Time, Serving Time: Labour And Law In Industrialization, Douglas Hay
Working Time, Dinner Time, Serving Time: Labour And Law In Industrialization, Douglas Hay
Articles & Book Chapters
Many economic historians agree that increased labour inputs contributed to Britain’s primary industrialisation. Voluntary self-exploitation by workers to purchase new consumer goods is one common explanation, but it sits uneasily with evidence of poverty, child labour, popular protest, and criminal punishments explored by social historians. A critical and neglected legal dimension may be the evolution of contracts of employment. The law of master and servant, to use the technical term, shifted markedly between 1750 and 1850 to advantage capital and disadvantage labour. Medieval in origin, it had always been adjudicated in summary hearings before lay magistrates, and provided penal sanctions …
Sentencing And The Salience Of Pain And Hope, Benjamin Berger
Sentencing And The Salience Of Pain And Hope, Benjamin Berger
Osgoode Legal Studies Research Paper Series
What would a jurisprudence of sentencing that was induced from the experience of punishment, rather than deduced from the technocracy of criminal justice, look like? Rather than focusing narrowly on the question of quantum, such a jurisprudence would be concerned with the character and quality of punishment. A fit sentence would account for pain, loss, estrangement, alienation, and other features of the offender’s aggregate experience of suffering at the hands of the state in response to his or her wrongdoing. This would be a broader, more resolutely political conception of criminal punishment. This article shows that the jurisprudence of the …
Constitutional Principles In Substantive Criminal Law, Benjamin L. Berger
Constitutional Principles In Substantive Criminal Law, Benjamin L. Berger
Osgoode Legal Studies Research Paper Series
Since Milsom’s famous dismissal of the “miserable history of crime in England,” criminal law has undergone a revolution in constitutional significance. The rise of rights constitutionalism as the heart of the modern liberal rule of law has given criminal law a new life in which it is subject to substantial justice-based innovation through appeal to the internal and basic norms of the legal system itself. Far from the marginal and exceptional status once ascribed to it by Milsom, this chapter argues that criminal law is now best understood and approached as a species of constitutional reflection. Substantive criminal law has …