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Appraising Strict Liability$
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Andrew Simester

Print publication date: 2005

Print ISBN-13: 9780199278510

Published to Oxford Scholarship Online: January 2010

DOI: 10.1093/acprof:oso/9780199278510.001.0001

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Strict Liability and the Presumption of Innocence: An Exposé of Functionalist Assumptions

Strict Liability and the Presumption of Innocence: An Exposé of Functionalist Assumptions

(p.151) 7 Strict Liability and the Presumption of Innocence: An Exposé of Functionalist Assumptions
Appraising Strict Liability

Paul Roberts

Oxford University Press

This chapter examines the conceptual, jurisprudential, and moral foundations of the argument for functional quivalence between strict criminal liability and procedural doctrines implicating the presumption of innocence. It focuses on a specific contextual application of functionalist reasoning. In reaction to the functionalist tendency to treat substantive criteria of criminal liability and procedural doctrines of evidence and proof as essentially fungible functional equivalents, Section 4 stresses the distinctive meaning, inherent value, and practical division of labour differentiating elements of substance and procedure in criminal legislation and in the administration of criminal justice. It is argued that substance and procedure are independent, incommensurable dimensions of penal law that cannot be reduced to interchangeable tokens and traded like currency. To the extent that it overlooks or denies these subtleties of meaning and value, the argument for functionalist equivalence perpetrates a reductionist fallacy that misleadingly oversimplifies the task of criminal legislation and cheapens our traditional ideals of criminal justice.

Keywords:   criminal liability, functionalist equivalence, criminal justice, strict liability, criminal law, presumption of innocence, procedural doctrines

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