The structure of assault in Scots law: a historical and comparative perspective

K Law (General);KDC Scotland

Barclay, Grant ; Chalmers, James

University:University of Glasgow

Department:School of Law

关键词: Criminal law, criminal legal theory, assault.;   

Others  :  http://theses.gla.ac.uk/8569/1/2017barclayllm.pdf

来源: University of Glasgow

【 摘 要 】

This thesis reviews both the history and current comparative landscape of the law of assault with a view to determining the optimal approach to be taken by Scots law in structuring its crime of assault. There is very little in the current literature offering either kind of review, and equally there has been very little analysis of the desirability of a single offence versus other methods of structuring assault or non-fatal offences against the person generally. These issues are therefore addressed in this paper, starting with an extensive examination of the legal history surrounding breaches of physical integrity from the seventeenth century right up to the present day. The development of a nominate crime of assault from a ius commune understanding of ‘injuries’ is considered, along with the slow evolution of intention as the culpability element in modern cases of assault. This analysis is then utilised to critically assess the rationality and efficiency of the current approach to assault. From here, a comparative analysis of culpability and harm is undertaken, involving an in-depth study of the English law approach to gradation of offences against the person based on harm, and the Model Penal Code approach to gradation through variation of conduct in the commission of the same offence. This thesis concludes that the current approach to culpability is the correct one, but argues that an approach which utilises the conduct element of offences, such as that of the Model Penal Code, can offer a more principled approach to assault in Scots law.