How do you contrast and compare scientific law and scientific theory?
Third, the borders between criminal law and other modes of legalregulation or control are being increasingly eroded by practices of‘preventive justice’. Instead of directly criminalizingconduct that brings about (or increases the risk of) a relevant kindof mischief, and convicting and punishing those who engage in suchconduct, governments seek more effective ways of preventing suchconduct by imposing legal constraints on those thought likely toengage in it—constraints that are often themselves backed by thecriminal law, in that it becomes a criminal offence to violatethem. Good examples of such measures are the Antisocial BehaviourOrders that English courts can impose on those accused of variouskinds of antisocial conduct (due to be replaced by Criminal BehaviourOrders), and the various restrictive orders that courts can impose onthose suspected of involvement in terrorist activity (see TerrorismPrevention and Investigation Measures Act 2011). The structure of thiskind of provision is that there is an initial, formally non-criminalprocess, in which a court is given reason to believe that a person hasbeen engaged in, and/or is likely in the future to engage in, somekind of undesirable, usually criminal, activity (antisocial behaviour;terrorism), and that it is necessary to subject him to restrictions inorder to prevent (or to reduce the risk of) future behaviour of thatkind. The court can then impose a range of restrictions: on where theperson may go or when he may travel (including imposing a curfew), onwhom he may meet, and on a range of activities in which he mightotherwise engage. Once the restrictive order is made, it is a criminaloffence to breach it. A normative theory of criminal law must alsohave something to say about these kinds of measure. Are they, or canthey be rendered, consistent with the principles of justice andlegality that are supposed to structure the criminal law; or do theymark the subversion of those principles in the interests of effectiveprevention? (See generally Ashworth and Zedner 2010, 2011, 2012;Ramsay 2012; Ashworth, Zedner and Tomlin 2013.)
Scientific Hypothesis, Theory, Law Definitions - …
Philosophical theories must also, however, draw on the resources ofother disciplines. They must attend to the empirical actualities ofthat which they theorise: to the histories of the different systems ofcriminal law, and to sociological inquiries into their actualoperations. Some critical theorists believe that such historical orsociological inquiries will undercut the pretensions of philosophicaltheorising: that what needs analysing is not the superstructure orsuperficial self-presentation of the criminal law, on whichphilosophers tend to concentrate, but the social, political andeconomic realities lying beneath that surface; and that given theoppressive or conflictual nature of those realities, philosophicaltheories cannot amount to anything more than doomed attempts torationalise what is inherently irrational or a-rational (see Kelman1981; Norrie 2001; also Law and Ideology). The only adequatereply to such critiques of philosophical theorising is to show howsuch theorising can assist both an understanding of what criminal lawis, and the discussion of what it ought to be, by taking seriously theconcepts in terms of which it presents itself: that is the task onwhich we embark in what follows.
One conception is instrumental. The criminal law is a technique orinstrument that can be used to serve various possible ends. We arejustified in maintaining a system of criminal law if it is an efficienttechnique for achieving worthwhile ends; its structure and contentshould then be determined by asking how it can serve those ends mostefficiently.
What is the Difference Between a Theory and a Hypothesis?
The first objection is, as it stands, unimpressive, and sometimesexpresses an incoherent moral relativism which makes the moral demandthat we should not make moral demands of others (see B. Williams 1976:34–9). It does reflect two general issues that face any attempt tojustify systems of political authority and law: the question of how fara polity depends for its legitimacy on a normative consensus, at leasta Rawlsian overlapping consensus, amongst its members, and how far lawand polity are possible in contexts of radical disagreement; and thequestion of whether and how a polity can claim legitimate authorityover those who reject its central values and its normative claims. Wecannot pursue these questions here, although we may note that they areas urgent for abolitionists as they are for advocates of the criminallaw, since their favoured practices and institutions depend, just as asystem of criminal law does, on the legitimacy and authority of thepolity that sustains them. However, this first objection does alsoraise a question that is more specific to the criminal law, and thatmust be answered by those who would defend the criminal law: what kindsof norm, with what kind of claimed authority, does or should thecriminal law declare—and should we maintain an institution thatseeks to declare and support such norms?
Compare and contrast a theory and law. Give one way …
Thus an instrumentalist approach to the justification of criminallaw seems to leave it as something of an open question whether the lawshould criminalize only immoral conduct, or should subject only morallyculpable agents to criminal liability. At the other extreme of thespectrum of theories of criminal law, by contrast, we find accountsthat make immorality and moral culpability central to the properconcerns of the criminal law.
hypothesis, law, and theory - let's compare them to ..
There are, of course, other types of Legal Moralism than Moore's. Anyversion of Legal Moralism claims that the immorality of a given kindof conduct is significantly relevant to the question of whether itshould be criminalized. We can then distinguish positive from negativeversions. Positive Legal Moralists hold that immorality is a goodreason for criminalization—not necessarily that it creates apresumption in favour of criminalization, but that it provides areason that should carry some weight in our deliberations (seeFeinberg 1984: 27; 1988: 324). Negative Legal Moralists hold insteadthat immorality constitutes only a necessary condition forcriminalization: we must not criminalize conduct unless it is immoral,but its immorality does not give us any positive reason to criminalizeit. Negative Legal Moralism, like negative retributivism (see Dolinko1991: 539–43), acts as a side-constraint on our pursuit of the goalsthat provide our positive reasons for maintaining a system of criminallaw, whereas a positive Legal Moralism helps to set those goals (seealso Simester and von Hirsch 2011: ch. 2; Duff forthcoming). We should notetoo that a positive Legal Moralist as defined here need not be anegative Legal Moralist: one can believe that immorality provides agood reason for criminalization whilst also believing that there areother reasons, including reasons for criminalizing conduct that is notimmoral. (We will also look later at the argument that whilstimmorality as such provides no reason for criminalization,immorality of the right kind does provide a good reason.)Furthermore, even positive Legal Moralists need not think, with Moore,that the reason for criminalizing immoral conduct is precisely andonly to secure its retributive punishment: she could instead believe,as Feinberg's Legal Moralist does, that we should criminalize it inorder to prevent it, and therefore only if criminalizing it would belikely to reduce its incidence (see Feinberg 1988: 324).