The criminal law presently distinguishes between actions and omissions, and only rarely proscribes failures to avert consequences that it would be an offense to bring about. Why? In recent years it has been persuasively argued by both Glover and Bennett that, celeris paribus, omissions to prevent a harm are just as culpable as are actions which bring that harm about. On the other hand, and acknowledging that hitherto “lawyers have not been very successful in finding a rationale for it,” Tony (...) Honoré has sought to defend the law's differential treatment. He proposes a “distinct-duties theory” that in addition to the general duties we owe to everyone, we also owe distinct duties to a more limited collection of people and associations, specified by features of our relationship with them. Where a distinct duty holds, breach by omission may well be no better than breach by positive action. But absent a distinct duty, omissions, per Honoré, are less culpable. They are mere failures to intervene and improve or rectify things, whereas actions are positive interventions which make things worse. And, thus, the law has good reason to differentiate between them. (shrink)

Many of the most serious crimes that fall within the justificatory scope of the harm principle do so constitutively. They do so in the sense that the harm that the crime is designed to prevent is a...

When should we make use of the criminal law? Suppose that a responsible legislature seeks to enact a morally justifiable range of criminal prohibitions. What criteria should it apply when deciding whether to proscribe conduct? Crimes, Harms, and Wrongs is a philosophical analysis of the nature, significance, and ethical limits of criminalisation. The authors explore the scope and moral boundaries of harm-based prohibitions, proscriptions of offensive behaviour, and 'paternalistic' prohibitions aimed at preventing self-harm. Their aim is to develop guiding principles (...) for these various grounds of state prohibition, including an analysis of the constraints and mediating factors that weigh for and against criminalisation. Both authors have written extensively in the field. In Crimes, Harms, and Wrongs they have reworked a number of well-known essays and added several important new essays to produce an integrated, accessible, philosophically-sophisticated account that will be of great interest to legal academics, philosophers, and advanced students alike"--Provided by publisher. (shrink)

This paper explores the Offence Principle. It discusses whether two constraints, additional to the criteria stated in conventional analysis, ought to be met before the Offense Principle can be satisfied: (i) that offensive conduct must be a wrong, and (ii) that the conduct must also lead to harm. The nature of the Harm Principle, and its relationship to the Offense Principle, are also considered. The paper suggests that, even if all cases in which offense should be criminalized also involve harm, (...) nonetheless there may be good reasons to retain a separate Offense Principle. (shrink)

We discuss and respond to the contributions of Tatjana Hörnle, John Kleinig, and John Stanton-Ife, and clarify some aspects of the arguments made in Crimes, Harms, and Wrongs.

We discuss and respond to the contributions of Tatjana Hörnle, John Kleinig, and John Stanton-Ife, and clarify some aspects of the arguments made in Crimes, Harms, and Wrongs.

The present volume draws together original and significant essays from a number of leading authorities which identify areas of the modern criminal law where there are significant conceptual difficulties. The project developed from a series of seminars in Cambridge University, in which leading Anglo-American philosophers, criminal lawyers and legal theorists explored subjects such as attempts, intention, justification, excuses, coercion, complicity, drug-dealing and criminal harm.

In 1992, Law and Philosophy published an account of the paradigm case of intended action; one which gestured at, and did not pursue, an explanation of the requirement that a person be an agent in respect of her behaviour before that behaviour can constitute intended action. This paper completes that account by supplying an analysis of agency. The paper falls into three parts. It begins by casting doubt upon the possibility of specifying a causal account along the lines once envisaged (...) by Davidson. An alternative approach is adopted: one that involves modifications to Frankfurt's depiction of action as behaviour under the agent's guidance, including a rejection of the view held by many writers that action requires intentional movement. Doubts about conventional wisdoms are also raised in the conclusion, which considers why philosophers and lawyers should be interested in the issue of agency at all. (shrink)

To say that the matter of the legality of the armed conflict against Iraq in 2003 was divisive is an understatement. The primary justification given by the UK government for the lawful nature of the Iraq war was an implied mandate from the Security Council. The implied mandate was said to be derived from a combination of Security Council Resolutions 678 and 1441. Many international lawyers remain unconvinced that such a mandate can be inferred from those resolutions. There is agreement (...) among both supporters and opponents of the war in Iraq that Saddam Hussein’s regime had an appalling human rights record. This was known to the coalition governments; indeed, Tony Blair expressly made the "moral case" for war on the basis of Hussein’s human rights violations. The legal justifications offered for the conflict by the UK government, however, did not refer to humanitarian intervention. This paper investigates whether it is possible that, despite the fact that the justification was not raised by the UK, it can provide a defence to any claims that the UK acted unlawfully, or that individuals committed an international crime, by initiating the attack on Iraq. (shrink)

Antony Duff's recent account of intended action has aroused considerable interest, particularly amongst English commentators, as an attempt to provide criteria that might be utilised by a judge or legislator. While Duff's analysis is instructive, and although it may be desirable to find conditions capturing the central notion of intention in action, this paper demonstrates that the specific conditions proposed by Duff are unsatisfactory. They require extensive modification in order to circumvent a number of difficulties presented here.

This paper responds to Antje du-Bois Pedain’s discussion of the wrongfulness constraint on the criminal law. Du-Bois Pedain argues that the constraint is best interpreted as stating that φing is legitimately criminalised only if φing is wrongful for other-regarding reasons. We take issue with du-Bois Pedain’s arguments. In our view, it is neither a necessary nor sufficient condition of legitimate criminalisation that φing is wrongful in du-Bois Pedain’s sense. Rather, it is a necessary condition of legitimate criminalisation that φing is (...) what we call bare wrongful —that is, that the reasons in favour of φing are defeated by the reasons against. Though du-Bois Pedain is critical of this view, we argue that her criticisms do not convince. (shrink)

The article is a review of A.P. Simester, ed., Appraising Strict Liability. We strongly recommend the book for the sophistication of the contributors’ analyses, and the contribution the book makes to clarifying the normative issues at stake in strict liability legal regimes. The review focuses on the more philosophical essays in the book. The specific issues from the book identified in the review are: the rights-based character of the prohibition on conviction without moral fault; the importance of the principle (...) of proportionality; due diligence defences; the instrumental worth of strict liability in relation to quasi-criminal regulation; the faultiness of genuinely creating risks. (shrink)

Donald Davidson holds that thought and talk emerge together. His view is an alternative to the views that language precedes thought and that thought precedes language. His basic argument is that in order to understand a language, an interpreter has to simultaneously assign beliefs, not to mention desires and intentions, to the speaker. So bits of language can be interpreted only if thoughts are attributed to the speakers of those bits. Davidson is arguably mistaken because interpretation of nonlinguistic utterances occurs (...) before the interpretation of linguistic ones. (shrink)

В книге отражена деятельность ведущих ученых, специалистов, руководителей, внесших большой вклад в развитие Философского факультета МГУ имени М. В. Ломоносова.

In this article, I comment on Simester and von Hirsch’s theory of criminalization and discuss general principles of criminalization. After some brief comments on punishment theories and the role of moral wrongdoing, I examine main lines of contemporary criminalization theories which tend to focus on the issues of harm, offense, paternalism and side-constraints. One of the points of disagreement with Simester and von Hirsch concerns the role of the harm principle. I rely on a straightforward normative concept of (...) “rights of others,” not in the sense of rights granted in positive law but in the sense of rights which are to be justified in political philosophy. With a rights-centered rather than a harm-centered approach, a prima facie reason for criminalization is the violation of others’ rights. It is unnecessary to develop a separate category of “offense to others,” and paternalistic interventions can be criticized straightforwardly because rights can be waived. (shrink)