Controlling Obscenity by Criminal Sanction

Consideration of both rationale and process suggest that the criminal sanction, society\u27s ultimate threat, inflicting as it does a unique combination of stigma and loss of liberty, should be resorted to only sparingly in a society that regards itself as free and open.\u27 The sanction is at once uniquely coercive and, in the broadest sense, uniquely expensive. It should be reserved for what really matters. It is the thesis of this paper that this advice as to the proper criterion of forbiddenness has not been followed in the area of obscenity law. The purpose of this paper is to explore some of the problems that confront the legislators and courts in their attempt to enforce morals in obscenity legislation through the utilization of the instrument of criminal sanction. Our study will consist first (by way of introduction) of a brief summary of the classic philosophical debate as to the cogency and viability of legislating morality in general and obscenity in particular; secondly a statement as to the current statutory and common law form of obscenity law in Canada; thirdly, a philosophical critique of obscenity law with a view to assessing the \u27legality\u27 of such legislation using the analysis promulgated by Lon Fuller; fourth, from an institutional perspective we will examine the practical difficulties encountered by the adjudicative process in its Sisyphean labour of applying obscenity law as it is currently formulated, with some discussion as to the impropriety of such an enterprise; fifth, a brief analysis as to the cost of enforcing obscenity law, and sixth, conclusions

Why Do We Punish?: The Case for Retributive Justice

The never-ending debate about the substantive and procedural rules in our criminal justice system rarely addresses itself to the most fundamental question- why do we punish at all? The answer to this threshold question has traditionally taken one of two lines, retributionist or utilitarian. On the one hand, there is the view that punishment of the morally derelict is its own justification for it is right for the wicked to be punished. This imperative flows from a view of the very nature of man as a responsible moral agent to whom rewards or punishment should be assessed according to the morality of his choice of behavior. On the other hand, there is the teleological, utilitarian view that the only proper justification for punishment is the prevention or reduction of antisocial behavior. The critical questions which the latter theory asks about any social action, law or institution are to be answered in terms of how much good will it produce, at what cost, and is it worth it? The utilitarian justification for punishment and the popularity of the behavioral model reached its zenith in the 196os. This attitude is displayed in the conclusions of the Ouimet Report which stated confidently that the Committee regards the protection of society not merely as the basic purpose but as the only justifiable purpose of the criminal law in contemporary Canada and that the rehabilitation of the individual offender offers the best long-term protection for society.\u27 The widespread support for the rehabilitative ideal crossed political and ideological boundaries. As attractive as these ideas appeared to their proponents, the force of the rehabilitative ideal on the philosophy of punishment diminished as the empirical reality of this brave new world came into focus. This paper examines the reasons for the displacement of the rehabilitative ideal as the dominant theory of correctional philosophy and will assess the revival of the retributive rationale in its new form in the justification of punishment

European Democracy and its Critique - Five Uneasy Pieces

democracy; European Court of Justice; fundamental/human rights; Germany; institutions; integration theory; interest intermediation; multilevel governance; national interest; supranationalism

Eurocacy and Distrust: Some Questions Concerning the Role of the European Court of Justice in the Protection of Fundamental Human Rights Within the Legal Order of the European Communities

Protection of individual rights has been a central feature of much of the judicial review by supreme courts in Western countries in the postwar era. Concepts such as individual dignity and privacy, as well as more classical notions of liberty and equality before the law, have been the standard repositories of constitutional interpretation by courts reviewing governmental legislation and administrative action. The concept and practice of judicial review have penetrated, albeit in a limited way, even legal cultures which for long have resisted, such as Britain and France. I Indeed, judicial review in general and the protection of individual rights in particular, are widely considered as a conditio sine qua non of democracy and the rule of law. But it is no exaggeration to say that all jurisdictions where this judicial power is exercised—even the oldest, the United States—have seen in the last forty years fierce controversies concerning the limits within which, and the principles upon which, judges should exercise their power to overturn majoritarian legislation

Alternatives to withdrawal from an International Organization: The Case of the EEC

Abbreviated adaptation of a study prepared for the Nathan Feinberg Festschrift (20 Israel Law Review 282 (1986))