Understanding the Law on Intoxicated Offending: Principle, Pragmatism and Legal Culture

Journal of International and Comparative Law, Vol. 3, No. 2, pp. 345-373, 2016

Sydney Law School Research Paper No. 17/04

31 Pages Posted: 6 Jan 2017

See all articles by Arlie Loughnan

Arlie Loughnan

The University of Sydney Law School

Sabine Gless

University of Basel

Date Written: January 4, 2017

Abstract

The criminal law on intoxicated offending is notoriously complex and technical, featuring distinctive doctrinal constructs and exceptions to otherwise general rules. In order to contribute to scholarly understanding of the law on intoxicated offending, and with a focus on the law in Australia (Victoria and New South Wales), England and Wales, Germany and Switzerland, in this article, we present a two-part analysis of the law. First, we reveal the ways in which, in varying configurations, the legal rules on intoxicated offending in the civil and common law contexts are suspended across a tension between principle and pragmatism. Second, we explore the significance of legal culture — broadly, non-doctrinal components of the legal order including traditions, practices and institutions — making the case that dimensions of legal culture relating to intoxicated offending achieve a reconciliation of legal principles with pragmatic concerns to discourage drunken crime, thereby ameliorating the costs of honouring or attempting to honour legal principle when it comes to intoxicated offending.

Keywords: Criminal Law, Intoxication, Criminal Responsibility, Guilt, Nulla Poena Sine Culpa, Subjective Fault

JEL Classification: K10, K14, K30

Suggested Citation

Loughnan, Arlie and Gless, Sabine, Understanding the Law on Intoxicated Offending: Principle, Pragmatism and Legal Culture (January 4, 2017). Journal of International and Comparative Law, Vol. 3, No. 2, pp. 345-373, 2016; Sydney Law School Research Paper No. 17/04. Available at SSRN: https://ssrn.com/abstract=2893925

Arlie Loughnan (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia
+61 2 9351 0246 (Phone)
+61 2 9351 0200 (Fax)

Sabine Gless

University of Basel ( email )

Petersplatz 1
Basel, CH-4003
Switzerland

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