Wednesday, March 13, 2013
John M. Aberdeen has posted Act, Circumstance, and Event: Austinian Action Theory Under the Griffith Criminal Code ((2011) 12 The Journal Jurisprudence 727) on SSRN. Here is the abstract:
Legal history and Sir Samuel Griffith’s Criminal Code do not always sit comfortably together. This is due in a substantial degree to accepted doctrine concerning the interpretation of the Griffith Code (the Brennan-Vagliano rule ), which deflects attention away from the Code’s historical antecedents, and instead concentrates focus upon the terms of the Code to the general exclusion of that history. Only in “exceptional circumstances” should the Court resort to pre-Code law in interpreting the provisions of the Code. It is arguable that this canon of interpretation somewhat over-simplifies what is in reality a substantially more complex question. This short paper does not, however, enter into the broader question of interpretation of the Code generally, but confines itself instead to one narrow issue: the significance of the words “act or omission,” an expression which appears in the Code, in that form, on numerous occasions, and which represents one of the foundation stones upon which the Code was erected. The expression, it is suggested, has a substantial historical pedigree, an appreciation of which can only assist to advance the modern articulation of criminal law theory under the Code. “Act” has long been recognised as an inherently ambiguous term; but it is probable that, by the time Griffith came to write the Code, “act,” as a juristic concept, had taken on a recognised content based predominantly upon Austin’s simple action theory. The accurate determination of this original meaning takes on an added significance when, as is the case with the Code, the term in question underpins fundamental concepts of liability, in respect of which even a minor shift in meaning may substantially impact upon the daily application of basic tenets of criminal responsibility.