The doing/allowing distinction plays an important role in our intuitive thinking about a number of legal issues, such as the need for criminal process protections, prohibitions on torture, the permissibility of the death penalty and so on. These are areas where it is intuitive to distinguish morally between harms that the state inflicts versus harms that it merely allows. Sunstein, Holmes, Vermeule and others have presented influential arguments for the claim that where the state is concerned the doing/allowing distinction has (...) no moral significance, even if it does elsewhere. I show that these arguments can be resisted. (shrink)

In this paper, our goal is to (a) survey some of the legal contexts within which violence risk assessment already plays a prominent role, (b) explore whether developments in neuroscience could potentially be used to improve our ability to predict violence, and (c) discuss whether neuropredictive models of violence create any unique legal or moral problems above and beyond the well worn problems already associated with prediction more generally. In Violence Risk Assessment and the Law , we briefly examine the (...) role currently played by predictions of violence in three high stakes legal contexts: capital sentencing ( Violence Risk Assessment and Capital Sentencing ), civil commitment hearings ( Violence Risk Assessment and Civil Commitment ), and sexual predator statutes ( Violence Risk Assessment and Sexual Predator Statutes ). In Clinical vs. Actuarial Violence Risk Assessment , we briefly examine the distinction between traditional clinical methods of predicting violence and more recently developed actuarial methods, exemplified by the Classification of Violence Risk (COVR) software created by John Monahan and colleagues as part of the MacArthur Study of Mental Disorder and Violence [1]. In The Neural Correlates of Psychopathy , we explore what neuroscience currently tells us about the neural correlates of violence, using the recent neuroscientific research on psychopathy as our focus. We also discuss some recent advances in both data collection ( Cutting-Edge Data Collection: Genetically Informed Neuroimaging ) and data analysis ( Cutting-Edge Data Analysis: Pattern Classification ) that we believe will play an important role when it comes to future neuroscientific research on violence. In The Potential Promise of Neuroprediction , we discuss whether neuroscience could potentially be used to improve our ability to predict future violence. Finally, in The Potential Perils of Neuroprediction , we explore some potential evidentiary ( Evidentiary Issues ), constitutional ( Constitutional Issues ), and moral ( Moral Issues ) issues that may arise in the context of the neuroprediction of violence. (shrink)

This is a review essay of Gardner, John. 2007, Offences and Defences: Selected Essays in the Philosophy of Criminal Law, Oxford: Oxford University Press, 288 pp.

Some legal theorists deny that states can conceivably act extra-legally, in the sense of acting contrary to domestic law. This position finds its most robust articulation in the writings of Hans Kelsen, and has more recently been taken up by David Dyzenhaus in the context of his work on emergencies and legality. This paper seeks to demystify their arguments and, ultimately, contend that we can intelligibly speak of the state as a legal wrongdoer or a legally unauthorized actor.