Criminalisation in respect of public order: interests, setbacks and wrongs

K Law (General)

Guo, Zhilong ; Farmer, Lindsay

University:University of Glasgow

Department:School of Law

关键词: Criminalisation, public order, interest, setback, wrong, imputation, life quality, inner peace, harm, offence, begging, loitering, indecency, insult.;   

Others  :  http://theses.gla.ac.uk/30750/1/2018GuoPhD.pdf

来源: University of Glasgow

【 摘 要 】

This thesis sets out an argument as to the principles which should determine the scope of public order crimes. The Preface demonstrates that the definition and scope of public order and corresponding public order crimes are arbitrary. In order to arrive at a clear definition of public order interests which can be applied in limiting the scope of offences against public order, in the first chapter the substantive elements of public order are constructed as categories of life convenience, comfort and peace, while the formal publicness is demarcated as multiple subjects of an interest as opposed to one specified subject of the interest.Taking Feinberg’s moral limits of criminalisation as its starting point, the second chapter restates the concepts of ‘harm to others’ and ‘offence to others’ as criminalisation frameworks applicable to public order crimes. In order to justify criminalisation, harm should be an objective, recognisable, imputable and wrongful setback to a physical interest, while offence should be a communicative, imputable and wrongful setback to inner peace based on normative sensibilities. Accordingly, harm/offence to the interests of others in smooth civil life is the moral basis for forming and shaping rules of criminalising disruptions of public order. The third chapter categorises problems of imputing public disorder and public offence and approaches these problems by proposing a formal test of substantial risk and, if necessary, a substantive test of counterbalancing justification. In order to address the problems of public order law in practice, the final two chapters apply the principles developed in the thesis to a number of typical public order problems. These chapters demonstrate that the valid scope of criminalising typical public order related conduct such as disorderly begging, loitering, indecencies and insults can be sensibly determined by the argued steps of limiting criminalisation. These two chapters identify some categories of truly intrusive and wrongful conduct that correspond to legal interests in convenience and comfort and inner peace.