Our penultimate chapter explores the extent to which the Tudor period saw a legal renaissance. It examines developments in the common law courts but also explores the development of new conciliar courts outside the common law, most notably star chamber and the court of equity, which were to prove influential. It also examines the further rise in the use and importance of statute law in this period, demonstrating that the Reformation statutes that split England from the Roman Catholic Church underscored the power of Parliamentary statute. Attention is also given to some developments in the common law courts during this period concerning the law of obligations (the development of the principle of consideration in contract law), property law (the development of the writ of ejectment that replaced the older land law writs and the origins of the law of trusts) and criminal law (the development of the distinction between murder and manslaughter).

This chapter completes our examination of the long Plantagenet period, which culminated in the bloody War of the Roses. However, as the chapter title makes plain, the focus is on the impact that the deadly plague of this period had upon law and order. The chapter explores the different interpretations made of the importance of the Black Death and surveys developments of this period such as the origins of what we would today call employment law, significant increases in the effectiveness of the administration of justice chiefly through increased powers for justices of the peace and important developments in both law of obligations (exploring how actions on the case developed from the writ of trespass and how it further developed into the action on the case for assumpsit) and the criminal law (focusing on treason and murder).

This chapter explores the role of the European court system in establishing the foundations of European criminal law and influencing its subsequent development. It opens with an historical overview of the emergence of the various elements within the judicial system focusing on the Court of Justice of the EU (CJEU) and the European Court of Human Rights. Particular emphasis is placed in the discussion on the contribution of the CJEU to the field of EU criminal law as it evolved during the Union’s formative years. Through its case law, the Court acted at various times as ‘the motor of European integration’ and the arbitrator of disputes over EU competence and the primacy of EU law. The chapter then moves to the contemporary setting of judicial engagement with the principle of mutual recognition by exploring the implications of certain judgments on the European Arrest Warrant. Consideration is given in this discussion to the increasing and progressive emphasis within the jurisprudence on the essential role of the European court system in ensuring due process and safeguarding fundamental rights.

The chapter questions whether Tolstoy’s ideology was weakening the legitimacy of imperial legality. Beginning with an overview of the state of Russia’s legal system, the chapter examines Tolstoy’s first encounters with the law as a student at Kazan University, his evaluation of public access to justice after the liberal reforms of the 1860s to 1870s, and his ideas of rule of law in general. Disappointed in law as a field of independent expertise, Tolstoy became more interested in true power, which he believed one could find in oneself by understanding the purpose of life. In order to obtain this power, he turned to literature, which he found to be much stronger than law. In his writing he could criticize both the social and political systems in which people participated and the way they had been conditioned not to recognize the horrors of these systems. The most disturbing example Tolstoy witnessed personally was people being forced to serve in the army during war and told that it was their sacred duty to kill. Believing, like his hero Jean-Jacques Rousseau, that the conditions of society corrupt people’s natural goodness, Tolstoy made it his mission to save people from such false ideas and actions being legally and socially imposed upon them.

The Introduction gives a snapshot of the current status of capital punishment around the globe. It gives current statistics from Amnesty International and describes Amnesty International's anti-death penalty campaign in the 1970s that led to the Declaration of Stockholm, which expressed "total and unconditional opposition to the death penalty." The Introduction describes the divide between retentionist and abolitionist countries, highlighting countries that have outlawed capital punishment in their constitutions or through judicial rulings. After detailing how the death penalty was traditionally seen as something other than torture, the Introduction discusses the law's evolving nature--and how the death penalty is increasingly seen as a torturous and cruel punishment that violates human dignity and fundamental human rights. Noting that death sentences are no longer treated as a "lawful sanction" in many locales, the Introduction describes how the U.N. General Assembly has voted on multiple occasions for a global moratorium on executions. The Introduction summarizes the current state of international law as regards capital punishment and previews the book's content.

The second power of the police is used to collect evidence and people, either summarily or by warrant, and present them to a magistrate for adjudication, principally in matters of criminal law. The traditional model assumes the purpose is to establish guilt and determine the appropriate punishment, with the result being incarceration and the harmful and disruptive consequences that often follow from it. A broader conception considers that the law is what signals the government’s legitimate interest in regulating a behavior owing to its risks and consequences, or the manner in which it violates rights, and these statutes are what empower the police to operationalize the government’s interest. This does not mean, however, that the necessary response should always be punitive; it can instead be linkage to care, treatment, or other interventions that address behavior. The chapter closes by observing that the criminal law is nonetheless what empowers the police to act in response to behaviors regardless of the consent or intentions of others, and if the government wishes to retain this ability while shifting crisis response away from police, it will need to solve the puzzle of how actors not empowered by the criminal law can otherwise decisively represent the government’s regulatory interests regarding individual behavior.

In this chapter, I examine how voluntas helps the young lawyer Cicero craft arguments and structure relationships with Roman clients, witnesses, and juries. In the De inventione and forensic speeches, we see his struggle to reconcile tradition with new intellectual tools. As he seeks to bring ratio more fully into Roman legal culture, voluntas plays a plural and ambiguous role. It is an instrument of rational inquiry, as in the competing schemata of criminal responsibility he examines in the De inventione. As it has always been in Roman law, voluntas is the desire of a legally relevant individual, emanating from and attributable to him alone – the marker of his agency and responsibility. So, too, however, is it used to signify the collective goodwill of an audience, which Cicero makes clear is the expert orator’s plaything. The “goodwill” sense of voluntas adds greatly to its durability in moral philosophy. While a sententia or iudicium pertain to a specific question, voluntas marks an ongoing choice or disposition, such as the will of a legislator, to be conserved. Cicero’s objectives for the law go largely unachieved in his time, but they expand Rome’s intellectual field of vision.

Chapter 2 looks at seamen who were ‘aliens’ (non-subjects), and shows that legal distinctions ultimately mattered little to the Navy. Britain was rather open to immigration, and during wartime most residual disabilities of non-subjects were eased for common sailors, who were needed and overall welcome. At the same time, military necessity meant that any advantages which their status as subjects of a different sovereign should have afforded them, most notably protection from impressment (forced service), were often ignored in practice. In courts martial, special accommodations and concessions were granted informally, as a result of perceived cultural ignorance, rather than on the basis of legal status. Finally, naturalisation was liberally bestowed on naval seamen, but it was, this chapter argues, a largely irrelevant benefit. The state was very quick to revoke its protection if this clashed with native allegiances, and during wartime the alien sailor, already allowed to work in both the Navy and merchant vessels, did not stand to gain much from being naturalised. If individual seamen strategically navigated legal status and national allegiances, so did the state itself: when in need of manpower, it did not hesitate to treat its own legal categories and subjecthood boundaries as pliable.

This chapter starts from a familiar question: is State responsibility in international law usefully understood on the model of domestic private law or on that of domestic criminal law or neither? It then discusses the attractions and limits of the model of private law. It then turns to ‘international crimes’ or ‘serious breach[es] of an obligation arising under a peremptory norm of general international law’ as defined in the International Law Commission's successive works and discusses the ways in which the provisions for such wrongs seem analogous or disanalogous to domestic criminal law. The next section takes up the suggestion that a distinction between ‘private’ and ‘public’ law is conceptually and practically preferable to that between ‘international crimes’ and ‘international delicts’: is this the best way to capture a category of international wrongs that merit a distinctive response? The final section asks whether State responsibility thus understood can usefully be seen as a species of ‘criminal’ responsibility and whether it offers domestic theorists a fruitful way of ‘deconstructing’ criminal law.

States make decisions to allocate resilience to (or withhold resilience from) stakeholders across these networked interests through the lens of the state’s own vulnerability and resilience needs. We have revealed how the state’s “other-regarding” responsibility to govern in the “collective interest” – allocating resilience to shore up particular (competing) individual, aggregated and/or institutional claims – and the state’s own “self-regarding” need to shore up its resilience vis-à-vis citizens, markets, and society – interact to produce and provoke state responses to squatting. Finally, because Resilient Property analyses seek to explore as much as possible of the “problem space,” we have looked beyond the horizontal scale of national legislation or litigation to investigate how multi-scalar states craft complex solutions to complex problems. This includes tailoring responses to the specific needs and priorities, pressures and strains, commitments and constraints, that come to fore at the local, regional, national or supra-national level. Multilayered responses to squatting allow scope for normative hybridity within state responses to “wicked” property problems, in ways that can support systemic equilibrium. In the first part of this chapter, we reflect on three types of state responses to squatting: (1) property/private law responses; (2) criminal justice/law-and-order responses; and (3) responses deploying other administrative functions of the state. We consider how state responses reflect alignments between state self-interest and selected aspects of the state’s other-regarding responsibilities; and how they contribute (or not) to restoring equilibrium and shoring up the authority and legitimacy of the state in moments of crisis. These national-jurisdiction level legal responses are embedded within a polycentric, multimodal, and multi-scalar matrix. In the second part of the chapter, we examine two city-level case studies: New York City and Barcelona – to reflect on moments in which local- or city-level responses were key to restoring equilibrium, or triggering tipping-points for change.

Australian indigenous peoples are among the world’s most incarcerated populations. The nineteenth century origins of this fact lie in Australian legal histories, of the interaction of indigenous peoples and British criminal law introduced in the course of colonisation. This chapter considers first the assertion of criminal jurisdiction in law and statute in the early nineteenth century, paying attention to some significant differences between the colonies. Second, we look at some elements of criminal trial, including the treatment of Aboriginal evidence and the role of interpreters. Third, the chapter examines the importance of the criminal justice system’s putative concern with victimisation and the justice due to victims. Finally we consider some evidence about the system-wide impacts of the assertion of criminal jurisdiction over indigenous peoples, including patterns of prosecution and punishment. Understanding these legal histories makes clear how the legal system’s professed principles of justice and fairness compounded discrimination and disadvantage.

Mary Spiers Williams offers the reader a provocative invitation to reflect on the centring of State law and to critically engage with its impact on First Peoples and more broadly its facilitation of dispossession and its structural bias against First Peoples in Australia. She asks readers to reconsider the nature and authority of law and legal systems transplanted to effect colonisation. Focussing on Australian criminal law, she challenges assumptions about its lawfulness and just–ness, and insists that the reader see its inherent violence against Indigenous people, ways of being and law. This provocative and uncomfortable essay endeavours to create the possibility that readers will gain some insight into Aboriginal Peoples’ perspectives. It does so first by sharing stories of First Peoples experience of state law and their practice of their own law. It also does so by offering another way of understanding what is lawful. Williams asks readers to consider what it might mean to shift their perspectives: what might happen if we assumed that all law derives from Country, not from courts or legislators? and that lawful behaviour, at minimum, requires us to recognise that everyone and everything is interrelated? At base it would require the state to stop claiming the primacy of its law, and to recognise instead, that, in Australia, two laws (First and State) exist under, and are subject to, one law (derived from Country).