Law students routinely forget that the legal tradition has been concerned with fact finding for centuries. The entire body of evidence law has evolved for two important purposes: ensuring that the evidence presented to a court is legally admissible; and ensuring that the evidence presented to the court is reliable so that the tribunal of fact is able to draw conclusions about whether or not an alleged fact existed in circumstances where the tribunal of fact has not witnessed the event for itself. Legal reasoning is empirically grounded and draws upon centuries of human experience in the examination of materials of this kind. With that in mind, principles from evidence law can be used to help us to think about facts as part of the analysis of a legal problem. Indeed, turning your mind to the rich body of evidence law is essential. It is not possible in a book like this to engage with evidence law in any detail. Evidence law in Australia is comprehensively examined by several authoritative authors, to which the reader is referred to for detail.

The discipline of law is unique as a body of knowledge. It is both theoretical and applied. Abstract and concrete. Moral and amoral. Just and cruel. And at its heart is a moment in which the abstract is translated into concrete action, a process that depends on theoretical application to the physical world. That application is linked to the art of problem solving. Human beings are problem-solving animals. All of us possess skills and experiences that enable us to engage with obstacles and problems in life. A problem is characterised by some event, experience or situation where our usual methods of operating and achieving desired ends are slowed down, prevented from operating or simply no longer work in that environment. Failure to successfully navigate a problem creates a crisis, during which we engage in different forms of conduct and thinking to find a resolution. Crises operate on a spectrum. Some are life- threatening. Some are innocuous. But the underlying dynamic is much the same. Problem solving is an adaptive and evolved trait that humans share with other animals and that enables us to survive in changing environments.

Writing up your answer is shaped by context. As a student, you are often called upon to answer a problem question in a specific format, such as a memorandum or letter of advice, with the added complication of a word limit. Students are often not aware that the requirement to write in a particular manner, with specific limits, is a pedagogical tool intended to reflect the kinds of documents used in practice, along with the need to strike a balance between accuracy and brevity. Being able to write sharply is an important skill in practice. Practitioners are also restricted by context. By now you should have a sense that the process is a complex one, and part of the art of lawyering is being able to translate complexity in ways that different audiences need to understand the situation. A person without legal training needs to have things explained as simply as possible. A practitioner will need the necessary detail, but keep in mind that time is money, and verbose correspondence is unnecessary and not appreciated. A barrister will need all the relevant information presented in such a way that the issues and complexities are clear and sharply identified.

In this chapter the aim is to undertake something of a guided analysis of a problem and apply the principles discussed so far. To that end, let’s now return to the problem set out in Appendix A. For this exercise, it is useful to begin by making notes, both of the information within the hypothetical and of the law. Using the steps explored in the last chapter as a guide, simply begin by reading the hypothetical in Appendix A. Note the people involved, the event(s), and especially the question you have been asked. Make some notes on your initial thoughts, before looking back over the Chapter 5 context. Then begin a systematic examination of the information.

Problem solving is an art form, which takes years of practice, experience, a thorough understanding of the law, and a thorough understanding of human behaviour. This chapter presents some basic ideas to set you on the path. There are several steps involved in dealing with a problem. Please keep in mind that legal reasoning is not linear, although it can be. Much depends on the nature of the problem. It involves the ability to proceed in a linear, logical approach in some cases, and a universal, nomadic approach in others. In this chapter we look at strategies for problem solving. Up to now we have talked about way of thinking about law and fact in the context of a problem solving analytic. The discussion is then steered towards application. Two approaches are suggested: one basic, the other advanced. Both approaches are outlined here. The model you choose really depends on your purpose and the depth of analytical detail needed.

You will have seen that a significant part of legal reasoning is linked to interpretation, and that the law plays an important part in shaping the rules of interpretation. This is especially true in the interpretation of legislation, which forms most of the conceptual terrain in which contemporary criminal law is located. This chapter introduces some of the core concepts linked to statutory interpretation principles applicable to the criminal law. Please note that this is by no means a comprehensive review but serves as an introductory overview.

Law is an applied and theoretical discipline. To that end, the law must be applied to the facts available when assessing the alignment of the facts with the law. In this respect law is an empirical discipline, one that requires objective fact and law in association with one another in its application. Evidence must exist to establish fact, while law must exist to establish the rule structure. The relationship between law and evidence is unique, for it is not simply the existence of objectively present objects that will establish the fact – the fact in law is subject to further legal construction through the laws of evidence. One aspect of that process is an object or event that has actual existence may not, as a matter of law, be available to the decision maker because of legal invalidity. Hence the empirical foundations of law are based on admissible evidence rather than mere evidence. This will be considered in more detail in Chapter 3.

Chapter 2 portrays the changing legal landscape addressing the legality – or lack thereof – of the cross-border movement and trade of cultural property. It starts by identifying the key features of legal divergence across national legal systems, concerning both private law and public law aspects, and discusses how this disparity poses a challenge for dealing not only with past actions but also with the current features of the global market for cultural objects. It then provides an overview of the evolution of international institutions and legal norms related to cultural property, such as the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property,

1 United Nations Educational, Scientific and Cultural Organization (UNESCO), Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, Nov. 14, 1970, 823 U.N.T.S. 231

The term art and part in Scots law refers to a form of derivative liability. This doctrine extends criminal liability to individuals who may not have committed the actus reus and, in some cases, may not have had the mens rea. Our understanding of the legal developments associated with this doctrine is limited. This chapter therefore examines the historical evolution of the concept, tracing its roots through selected early sources of Scots and English law. It investigates the extent of legislative reform in the sixteenth century and evaluates, through selected homicide prosecutions from 1580 to 1650, the impact of these reforms on the administration of justice and the prosecution of art and part.

As heterosexual sex became a driving explanation, feminist debates about sex and power took center stage in the AIDS response. At the heart of this feminist struggle is the question of sex work. Some feminists, carceral antitrafficking feminists, saw sex work as the objectification and exploitation of women. Others saw it as a site of agency and power. Chapter 5, “The Sex Wars Come to AIDS: Risk and Consent,” follows these debates as they moved into public health and the AIDS response. Sex workers were (and continue to be) among the hardest hit with HIV. They were also some of the most powerful advocates of harm reduction. Empowering sex worker communities would turn out to be one of the most reliable ways to slow the spread of HIV. But for feminists who saw sex work as exploitation, these public health interventions were aiding in the exploitation of women. Buoyed by political conservatives and the antitrafficking movement, carceral antitrafficking feminists successfully lobbied for restrictions on funding sex worker projects. The consequences were deadly.

In this chapter, we explore in detail two key corporate law concepts: the separate legal status of the corporation and limited liability. We discuss limitations and inroads into these concepts, as well as how the corporation—separate from the people who invest in or run it—can be liable in tort and criminal law. This chapter builds on the themes raised in Chapter 2: the relevance of different theoretical and ideological perspectives on the corporation and its role and purpose in contemporary society. To reiterate why these questions are important:

The broad and basic purpose of examining corporate theory is to develop a framework within which we can assess the values and assumptions that either unite or divide the plethora of cases, reform proposals, legislative amendments, and practices that constitute modern corporate law. This law has not sprung up overnight. We need some way of disentangling the differing philosophical and political perspectives from which it has been constructed. Indeed, the great benefit of theoretical inquiry is to reveal the existence of these differences in the first place.

Several criminal offences can originate from or culminate with the creation of content. Sexual abuse can be perpetrated by producing intimate material without the subject’s consent, while incitement to criminal activity can begin with a simple conversation. When the task of generating content is entrusted to artificial agents, it becomes necessary to delve into the associated risks posed by this technology. Generative AI changes criminal affordances because it simplifies access to harmful or dangerous content, amplifies the range of recipients, creates new kinds of harmful content, and can exploit cognitive vulnerabilities to manipulate user behaviour. Given this evolving landscape, the question that arises is whether criminal law should be involved in the policies aimed at fighting and preventing Generative AI-related harms. The bulk of criminal law scholarship to date would not criminalise AI harms on the theory that AI lacks moral agency. However, when a serious harm occurs, responsibility needs to be distributed considering the guilt of the agents involved, and, if it is lacking, it needs to fall back because of their innocence. Legal systems need to start exploring whether and how guilt can be preserved when the actus reus is completely or partially delegated to Generative AI.

This introductory chapter first outlines the aims and history of the international project on Core Concepts in Criminal Law and Criminal Justice. The aims have been inspired by the increasing globalisation of criminal law and criminal justice, which has led to a growing desire to develop common approaches to common problems and to learn from the diversity of current practice in different countries. This has been reinforced by the internationalisation of criminal justice in international and mixed criminal tribunals. There is now a need to engage in a multi-jurisdictional and comparative conceptual analysis not provided by previous comparative projects, which typically focus on specific topics or issues. The chapter then provides an overview of the chapters in the volume, each of which aims to uncover underlying commonalities and differences, and to explore the scope for constructive assimilation or reform. Finally, the chapter comments on plans for the future.

This chapter makes a case for rethinking the early history of colonial Hong Kong – for seeing the young colony as an ambiguous juridical space, shaped and bounded by inchoate ideas of extradition. History has forgotten this feature of early Hong Kong because most studies have assumed, anachronistically, that the Opium War treaties of 1842–43 instituted ‘extradition’ between Hong Kong and China, in addition to British ‘extraterritoriality’ in China. In fact, these ideas took time to crystallise from fuzzier arrangements for dividing jurisdiction. This jurisdictional ambiguity coincided with the belated rise of territorial thinking in the British Empire. It also coincided with ongoing developments in the British approach to surrendering fugitives to foreign states – a procedure that legal actors were only starting to refer to as ‘extradition’. So, historicising the idea of extradition allows us to understand how British actors perceived their practices in Hong Kong and China in comparison to their practices elsewhere. This perspective reveals that the imperial origins of extradition involved crucial experiments in the colonial ordering of territory, people, and executive power.

Psychology and law, by their nature, are deeply entwined. Both are about human behavior – understanding it, modifying it, regulating it. Psychology’s research engagement with legal topics enjoys a long history, but until recently has been largely limited to clinical assessment (e.g., capacity, insanity) and police and trial evidence and procedures (e.g., eyewitnesses, jury instructions). The traditional canon of “Psychology & Law” research gained prominence when DNA evidence revealed that many wrongful convictions involved problems foreseen by psychologists. Also, the emergence of “Behavioral Law & Economics” likely provided more legitimacy to law’s engagement with empirical psychology topics and methods, spurring “Law & Psychology” teaching and research in law schools. The expanded range of research can be found across the US law curriculum as illustrated in four main first-year courses – Criminal Law, Torts, Contracts, and Property – and two commonly taken or required courses – Evidence and Professional Responsibility. The current experimental jurisprudence boom has added to the topics and methods used in this research and amplifies the existing trend in which psychology engages more closely with the content and values of law.

Legal rights, obligations, and liabilities bind together entities, including people, real and moveable property, and abstract objects, across time. Determining whether these rights, obligations, and liabilities exist at any particular time therefore requires the law to embed within it a theory of persistence – that is, a theory of how entities persist over time. The philosophical and psychological literature has identified multiple different theories of how objects persist over time, some of which are identity relations and some of which are not. Research in experimental jurisprudence has shown both that ordinary people’s judgments about the law often match the content of the law itself and that ordinary people’s judgments appear sensitive to multiple different persistence relations. These findings provide reason to think that the law, to the extent it reflects the judgments of ordinary people, also reflects multiple different theories of persistence – contrary to recent arguments that legal rights depend solely on numerical identity.