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107 found
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  1. Negligência Implica Erro-Ignorância e Tentativa Implica Erro-Suposição.Ricardo Tavares Da Silva - manuscript
    Contrary to what is commonly held, negligence (namely, conscious negligence) and willfulness (namely, recklessness) are not distinguished on the basis of the volitional element but on the basis of the cognitive element, since negligence implies ignorance-mistake, being the volitional element common to both figures. On the other hand, if, in negligence, the representation of the typical fact is something that exists less than what objectively exists, in the attempt, on the contrary, it is something that exists more. Hence, attempt implies (...)
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  2. Self-Defense and Imminence.Uwe Steinhoff - manuscript
    This paper argues that there is a significant moral difference between force applied against (imminent) attackers on the one hand and force applied against “threatening” people who are not (imminent) attackers on the other. Given that there is such a difference, one should not blur the lines by using the term “self-defense” (understood as including other-defense) for both uses of force. Rather, only the former is appropriately called self-defense, while for the latter, following German legal terminology, the term “justifying defensive (...)
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  3. Shortcomings of and Alternatives to the Rights-Forfeiture Theory of Justified Self-Defense and Punishment.Uwe Steinhoff - manuscript
    I argue that rights-forfeiture by itself is no path to permissibility at all (even barring special circumstances), neither in the case of self-defense nor in the case of punishment. The limiting conditions of self-defense, for instance – necessity, proportionality (or no gross disproportionality), and the subjective element – are different in the context of forfeiture than in the context of justification (and might even be absent in the former context). In particular, I argue that a culpable aggressor, unlike an innocent (...)
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  4. Entrapment.Daniel J. Hill, Stephen K. McLeod & Attila Tanyi - 2024 - Elgar Encylopedia of Crime and Criminal Justice.
    We discuss how the law and scholars have approached three questions. First, what acts count as acts of entrapment? Secondly, is entrapment a permissible method of law-enforcement and, if so, in what circumstances? Thirdly, what must criminal courts do, in response to the finding that an offence was brought about by an act of entrapment, in order to deliver justice? While noting the contrary tendency, we suggest that the first question should be addressed in a manner that is neutral about (...)
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  5. Punitive Restoration.Thom Brooks - 2023 - In Matthew C. Altman (ed.), The Palgrave Handbook on the Philosophy of Punishment. Basingstoke: Palgrave-Macmillan. pp. 639-656.
    Restorative justice is highly promising as an effective approach to better supporting victims, reducing reoffending, and lowering costs. The challenge it faces is a dual hurdle of limited applicability and lack of public confidence. The issue is how we might better embed restorative justice in the criminal justice system so its promising effectiveness could be shared more widely while increasing public confidence. This chapter explores the new approach of punitive restoration, which gives more tools for restoration including a wider punitive (...)
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  6. Gregg D. Caruso: Rejecting Retributivism: Free Will, Punishment, and Criminal Justice.Thom Brooks - 2023 - Ethical Theory and Moral Practice 26 (1):157-159.
  7. Review of Benjamin S. Yost, "Against Capital Punishment".Thom Brooks - 2023 - Ethics 133 (4):662-666.
    Review of Benjamin Yost's Against Capital Punishment by Thom Brooks.
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  8. Criminal Responsibility.Ken Levy - 2023 - In A Companion to Free Will. Hoboken, N.J.: Wiley Blackwell. pp. 406-413.
    I explicate the conditions required for criminal responsibility, provide an overview of criminal defenses, distinguish criminal responsibility from both tort liability and moral responsibility, and explicate the current state of the insanity defense.
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  9. Renouncing the attempt versus perpetration distinction.Izabela Skoczeń - 2023 - Synthese 201 (1):1-29.
    Legal and moral luck goes against the basic principle of criminal law that responsibility ascriptions are based on the mental state of the perpetrator, rather than merely the outcome of her action. If outcome should not play a decisive role in responsibility ascriptions, the attempt versus perpetration distinction becomes more difficult to justify. One potential justification is that we never know whether the attempter would not have resigned from pursuing her criminal intent even at the last moment. However, this paper (...)
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  10. Natural Punishment.Raff Donelson - 2022 - North Carolina Law Review 100 (2):557-600.
    A man, carrying a gun in his waistband, robs a food vendor. In making his escape, the gun discharges, critically injuring the robber. About such instances, it is common to think, “he got what he deserved.” This Article seeks to explore cases like that—cases of “natural punishment.” Natural punishment occurs when a wrongdoer faces serious harm that results from her wrongdoing and not from anyone seeking retribution against her. The Article proposes that U.S. courts follow their peers and recognize natural (...)
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  11. What is the Incoherence Objection to Legal Entrapment?Daniel J. Hill, Stephen K. McLeod & Attila Tanyi - 2022 - Journal of Ethics and Social Philosophy 22 (1):47-73.
    Some legal theorists say that legal entrapment to commit a crime is incoherent. So far, there is no satisfactorily precise statement of this objection in the literature: it is obscure even as to the type of incoherence that is purportedly involved. (Perhaps consequently, substantial assessment of the objection is also absent.) We aim to provide a new statement of the objection that is more precise and more rigorous than its predecessors. We argue that the best form of the objection asserts (...)
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  12. Defensive Escalations.Gerald Lang - 2022 - The Journal of Ethics 26 (2):273-294.
    Defence cases with an escalatory structure, in which the levels of violence between aggressor and defender start out as minor and then become major, even lethal, raise sharp problems for defence theory, and for our understanding of the conditions of defence: proportionality, necessity, and imminence. It is argued here that defenders are not morally required to withdraw from participation in these cases, and that defensive escalations do not offend against any of the conditions of defence, on an adequate understanding of (...)
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  13. An Evidence-driven Research to the Transgressions of Geneva Conventions by the Communist Party of China Led Autocratic Regime.Yang Immanuel Pachankis - 2022 - International Journal of Scientific and Engineering Research 13 (10):249-266.
    The "second-generation indigenization" hypothesis of Huntington's phenomenological observations on totalitarianism in Cold War regime collapse subtly portrayed the realpolitik interest groups' political influences with autocracy disbandment processes. The research puts democratization as the premise and globalization as purpose for the analysis, with the cultural anthropological psychopathology & criminological elements of genocide and crime against humanity explained, underlying some of the Communist Party of China (CPC)’s organizational behaviors. With the regionalism purposes & approaches to multilateralism by People's Republic of China (PRC), (...)
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  14. Addressing the Past: Time, Blame and Guilt.Edgar Phillips - 2022 - International Journal of Philosophical Studies 30 (3):219-238.
    Time passed after the commission of a wrong can affect how we respond to its agent now. Specifically it can introduce certain forms of complexity or ambivalence into our blaming responses. This paper considers how and why time might matter in this way. I illustrate the phenomenon by looking at a recent real-life example, surveying some responses to the case and identifying the relevant forms of ambivalence. I then consider a recent account of blameworthiness and its development over time that (...)
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  15. Punishment: A Critical Introduction.Thom Brooks - 2021 - Routledge.
    This new second edition of Punishment includes a revised and expanded defence of the groundbreaking unified theory of punishment that brings together elements of retribution, deterrence and rehabilitation into a new coherent framework. Thom Brooks expands the chapter length case studies from capital punishment, juvenile offending, domestic violence and sex crimes to include new chapters on social media offences and corporate liability addressing some of today's most pressing issues in criminal justice.
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  16. Contrived self‐defense: A case of permissible wrongdoing.Tsung-Hsing Ho - 2021 - Philosophical Forum 52 (3):211-220.
  17. Distinctive duress.Craig K. Agule - 2020 - Philosophical Studies 177 (4):1007-1026.
    Duress is a defense in both law and morality. The bank teller who provides an armed robber with the bank vault combination, the innocent suspect who fabricates a story after hours of interrogation, the Good Samaritan who breaks into a private cabin in the woods to save a stranded hiker, and the father who drives at high speed to rush his injured child to the hospital—in deciding how to respond to agents like these, we should take into account that they (...)
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  18. Normative Ignorance: A Critical Connection Between the Insanity and Mistake of Law Defenses.Ken Levy - 2020 - Florida State University Law Review 47:411-443.
    This Article falls into three general parts. The first part starts with an important question: is the insanity defense constitutionally required? The United States Supreme Court will finally try to answer this question next term in the case of Kahler v. Kansas. -/- I say “finally” because the Court refused to answer this question in 2012 when it denied certiorari to an appeal brought by John Joseph Delling, a severely mentally ill defendant who was sentenced to life in prison three (...)
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  19. The insanity defence without mental illness? Some considerations.Luca Malatesti, Marko Jurjako & Gerben Meynen - 2020 - International Journal of Law and Psychiatry 71.
    In this paper we aim to offer a balanced argument to motivate (re)thinking about the mental illness clause within the insanity defence. This is the clause that states that mental illness should have a relevant causal or explanatory role for the presence of the incapacities or limited capacities that are covered by this defence. We offer three main considerations showing the important legal and epistemological roles that the mental illness clause plays in the evaluation of legal responsibility. Although we acknowledge (...)
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  20. Autism Spectrum Condition, Good and Bad Motives of Offending, and Sentencing.Jukka Varelius - 2020 - Neuroethics 14 (2):143-153.
    It has been proposed that the ways in which the criminal justice system treats offenders with Autism spectrum condition should duly account for how the condition influences the offenders’ behavior. While the recommendation appears plausible, what adhering to it means in practice remains unclear. A central feature of ASC is seen to be that people with the condition have difficulties with understanding and reacting to the mental states of others in what are commonly considered as adequate ways. This article aims (...)
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  21. Limiting Identity in Criminal Law.Mihailis E. Diamantis - 2019 - Boston College Law Review 60:2011-2099.
    People change with time. Their personalities, values, and preferences shift incrementally as they accrue life experience, discover new sources of meaning, and form/lose memories. Accumulated psychological changes eventually reshape not just how someone relates to the world about her, but also who she is as a person. This transience of human identity has profound implications for criminal law. Previous legal scholarship on personal identity has assumed that only abrupt tragedy and disease can change who we are. However, psychologists now know (...)
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  22. Successor Identity.Mihailis E. Diamantis - 2019 - Yale Journal on Regulation 36:1-44.
    The law of successor criminal liability is simple—corporate successors are liable for the crimes of their predecessors. Always. Any corporation that results from any merger, consolidation, spin-off, etc., is on the hook for all the crimes of all the corporations that went into the process. Such a coarse-grained, onetrack approach fails to recognize that not all reorganizations are cut from the same cloth. As a result, it skews corporate incentives against reorganizing in more socially beneficial ways. It also risks punishing (...)
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  23. The Paradox of Consent.Stephen Kershnar - 2019 - International Journal of Applied Philosophy 33 (2):305-318.
    If consent is valid (that is, morally transformative), then in every case it is either valid or invalid. This is because of the notion that (when valid) consent eliminates a right and a person either has or lacks a right against another. A parallel problem to the paradox of symmetrical attackers applies to consent. That is, there is a case in which two people neither consent nor do not consent to one another. As a practical matter, attorneys, judges, legislators, physicians, (...)
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  24. Hate Crime Laws.Kenneth W. Simons - 2019 - In Larry Alexander & Kimberly Kessler Ferzan (eds.), The Palgrave Handbook of Applied Ethics and the Criminal Law. Springer Verlag. pp. 285-311.
    This chapter reaches the following conclusions about laws that enhance punishment for criminal conduct prompted by group hatred or bias:Hatred should not be either a necessary or a sufficient condition for enhanced punishment.Enhanced punishment is justifiable when bias crimes display greater culpability, express disrespect for the victim’s group, or cause either greater psychic harm to the victim or group-specific outrage in the victim’s community.Properly designed bias crime laws do not improperly punish for thoughts or character.Such laws are more defensible if (...)
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  25. War Crimes: Causes, Excuses, and Blame.Matthew Talbert & Jessica Wolfendale - 2019 - New York, USA: OUP USA.
    Why do war crimes occur? Are perpetrators of war crimes always blameworthy? In an original and challenging thesis, this book argues that war crimes are often explained by perpetrators' beliefs, goals, and values, and in these cases perpetrators may be blameworthy even if they sincerely believed that they were doing the right thing.
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  26. The Concept of Entrapment.Daniel J. Hill, Stephen K. McLeod & Attila Tanyi - 2018 - Criminal Law and Philosophy 12 (4):539-554.
    Our question is this: What makes an act one of entrapment? We make a standard distinction between legal entrapment, which is carried out by parties acting in their capacities as (or as deputies of) law- enforcement agents, and civil entrapment, which is not. We aim to provide a definition of entrapment that covers both and which, for reasons we explain, does not settle questions of permissibility and culpability. We explain, compare, and contrast two existing definitions of legal entrapment to commit (...)
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  27. Neuropsychology and the Criminal Responsibility of Psychopaths: Reconsidering the Evidence.Marko Jurjako & Luca Malatesti - 2018 - Erkenntnis 83 (5):1003-1025.
    Recently it has been argued that certain neuropsychological findings on the decision-making, instrumental learning, and moral understanding in psychopathic offenders offer reasons to consider them not criminally responsible, due to certain epistemic and volitional impairments. We reply to this family of arguments, that collectively we call the irresponsibility of the psychopath argument. This type of argument has a premise that describes or prescribes the deficiencies that grant or should grant partial or complete criminal exculpation. The other premise contends that neuropsychological (...)
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  28. Unlocking Morality from Criminal Law.Thom Brooks - 2017 - Journal of Moral Philosophy 14 (3):339-352.
    This review article critically examines R. A. Duff and Stuart P. Green’s wide-ranging Philosophical Foundations of Criminal Law. The book captures well a crucial debate at the heart of its topic: is morality a key for understanding criminal law? I first consider legal moralism arguments answering this question in the affirmative and argue they should be rejected. I next consider alternatives to argue that philosophers of criminal law should look beyond legal moralism for more compelling theories about criminal law.
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  29. ‘Drugs That Make You Feel Bad’? Remorse-Based Mitigation and Neurointerventions.Jonathan Pugh & Hannah Maslen - 2017 - Criminal Law and Philosophy 11 (3):499-522.
    In many jurisdictions, an offender’s remorse is considered to be a relevant factor to take into account in mitigation at sentencing. The growing philosophical interest in the use of neurointerventions in criminal justice raises an important question about such remorse-based mitigation: to what extent should technologically facilitated remorse be honoured such that it is permitted the same penal significance as standard instances of remorse? To motivate this question, we begin by sketching a tripartite account of remorse that distinguishes cognitive, affective (...)
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  30. Should Law track Morality?Re’em Segev - 2017 - Criminal Justice Ethics 36 (2):205-223.
    Does the moral status of an action provide in itself a non-instrumental, pro-tanto reason for a corresponding legal status – a reason that applies regardless of whether the law promotes a value that is independent of the law, such as preventing wrongdoing or promoting distributive or retributive justice? While the relation between morality and law is a familiar topic, this specific question is typically not considered explicitly. Yet it seems to be controversial and each of the contrasting answers to this (...)
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  31. Legal Insanity and Executive Function.Katrina Sifferd, William Hirstein & Tyler Fagan - 2017 - In Mark White (ed.), The Insanity Defense: Multidisciplinary Views on Its History, Trends, and Controversies. Praeger. pp. 215-242.
    In this chapter we will argue that the capacities necessary to moral and legal agency can be understood as executive functions in the brain. Executive functions underwrite both the cognitive and volitional capacities that give agents a fair opportunity to avoid wrongdoing: to recognize their acts as immoral and/or illegal, and to act or refrain from acting based upon this recognition. When a person’s mental illness is serious enough to cause severe disruption of executive functions, she is very likely to (...)
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  32. The Concept of Voluntariness.Maria Alvarez - 2016 - Jurisprudence 7 (3):665-671.
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  33. Trying to Make Sense of Criminal Attempts. [REVIEW]Ken Levy - 2016 - Jurisprudence 7 (3):656-664.
    Issues include attempts generally; the problem of outcome luck; the impossibility defense; physical movement and intent; and reckless attempts, attempted rape, and attempted theft. In the final section, I offer a hypothetical that challenges Prof. Donnelly-Lazarov's theory.
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  34. A Précis of Punishment.Thom Brooks - 2015 - Philosophy and Public Issues - Filosofia E Questioni Pubbliche 5 (1).
    Punishment is a topic of increasing importance for citizens and policy-makers. The same can be said for academic researchers and students. Mass imprisonment has reached record high levels while public confidence is often lacking. New thinking is required urgently to address these challenges. Moreover, there have been several key developments in the philosophy of punishment over the last 20 years absent in leading guides including the communicative theory of punishment, restorative justice and my novel unified theory of punishment. -/- My (...)
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  35. Defending Punishment. Replies to Critics.Thom Brooks - 2015 - Philosophy and Public Issues - Filosofia E Questioni Pubbliche 5 (1).
    I am very grateful to the contributors for this symposium for their essays on my Punishment book. Each focuses with different elements of my work. Antony Duff examines the definition of punishment in my first few pages. Michelle Madden Dempsey analyses the importance given to coherence in my account and critique of expressivist theories of punishment. Richard Lippke considers my statements about negative retributivism in an important new defence of that approach. I examine each of these in turn below. While (...)
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  36. Hart and Punishment for Negligence.Larry Alexander - 2014 - In C. G. Pulman (ed.), Hart on Responsibility.
  37. Killing Minimally Responsible Threats.Saba Bazargan - 2014 - Ethics 125 (1):114-136.
    Minimal responsibility threateners are epistemically justified but mistaken in thinking that imposing a nonnegligible risk on others is permissible. On standard accounts, an MRT forfeits her right not to be defensively killed. I propose an alternative account: an MRT is liable only to the degree of harm equivalent to what she risks causing multiplied by her degree of responsibility. Harm imposed on the MRT above that amount is justified as a lesser evil, relative to allowing the MRT to kill her (...)
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  38. Ethics and the Brains of Psychopaths: The Significance of Psychopathy for our Ethical and Legal Theories.William Hirstein & Katrina Sifferd - 2014 - In Charles Wolfe (ed.), Brain Theory: Essays in Critical Neurophilosophy. London: Springer. pp. 149-170.
    The emerging neuroscience of psychopathy will have several important implications for our attempts to construct an ethical society. In this article we begin by describing the list of criteria by which psychopaths are diagnosed. We then review four competing neuropsychological theories of psychopathic cognition. The first of these models, Newman’s attentional model, locates the problem in a special type of attentional narrowing that psychopaths have shown in experiments. The second and third, Blair’s amygdala model and Kiehl’s paralimbic model represent the (...)
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  39. Radical and Marxist Theories of Crime, Lynch & Stretesky (Review). [REVIEW]Miroslav Imbrisevic - 2014 - Marx and Philosophy Review of Books 1:1-3.
    This collection of essays approaches the issue of crime from the perspective of criminology, which is traditionally concerned with the nature and causes of crime. Radical or Marxist criminology (RMC) became prominent in the late 60s. This strand of criminology is concerned with how class formation, class structure and crime are related. It is assumed that the motivation to commit crimes is not innate to individuals but is a result of social conditions. RMC’s most important premise is that the structure (...)
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  40. Will There Be a Neurolaw Revolution?Adam Kolber - 2014 - Indiana Law Journal 89:807-845.
    The central debate in the field of neurolaw has focused on two claims. Joshua Greene and Jonathan Cohen argue that we do not have free will and that advances in neuroscience will eventually lead us to stop blaming people for their actions. Stephen Morse, by contrast, argues that we have free will and that the kind of advances Greene and Cohen envision will not and should not affect the law. I argue that neither side has persuasively made the case for (...)
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  41. It's Not Too Difficult: A Plea to Resurrect the Impossibility Defense.Ken Levy - 2014 - New Mexico Law Revview 45:225-274.
    Suppose you are at the gym trying to see some naked beauties by peeping through a hole in the wall. A policeman happens by, he asks you what you are doing, and you honestly tell him. He then arrests you for voyeurism. Are you guilty? We don’t know yet because there is one more fact to be considered: while you honestly thought that a locker room was on the other side of the wall, it was actually a squash court. Are (...)
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  42. Revisiting the Hart/Wootton Debate on Responsibility.Matthew Matravers & Arina Cocoru - 2014 - In C. G. Pulman (ed.), Hart on Responsibility.
  43. What temptation could not be : a lesson from the criminal law.Gabriel S. Mendlow - 2014 - In Enrique Villanueva (ed.), Law and the Philosophy of Action. Brill | Rodopi.
    Prominent theories of the criminal law borrow heavily from the two leading theories of temptation—the evaluative conception of temptation, which conceives emotion and desire as essentially involving a kind of evaluation, and the mechanistic conception of temptation, which conceives emotion and desire as essentially involving felt motivation. As I explain, both conceptions of temptation are inconsistent with the possibility of akratic action, that is, action contrary to a person’s conscious better judgment. Both are inconsistent with the possibility of akratic action (...)
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  44. 'Introduction'.C. G. Pulman - 2014 - In Hart on Responsibility. Palgrave-Macmillan.
  45. Moral Rightness and the Significance of Law: Why, How and When Mistake of Law Matters.Re'em Segev - 2014 - University of Toronto Law Journal, Forthcoming 64:36-63.
    The question of whether a mistake of law should negate or mitigate criminal liability is commonly considered to be pertinent to the culpability of the agent, often examined in light of the (epistemic) reasonableness of the mistake. I argue that this view disregards an important aspect of this question, namely whether a mistake of law affects the rightness of the action, particularly in light of the moral significance of the mistake. I argue that several plausible premises, regarding moral rightness under (...)
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  46. Just Cause and 'Right Intention'.Uwe Steinhoff - 2014 - Journal of Military Ethics 13 (1):32-48.
    I argue that the criterion of just cause is not independent of proportionality and other valid jus ad bellum criteria. One cannot know whether there is a just cause without knowing whether the other (valid) criteria (apart from ‘right intention’) are satisfied. The advantage of this account is that it is applicable to all wars, even to wars where nobody will be killed or where the enemy has not committed a rights violation but can be justifiably warred against anyway. This (...)
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  47. Law and Legal Theory.Thom Brooks (ed.) - 2013 - Leiden: Brill.
    brings together some of the most important essays in the area of the philosophy of law written by leading, international scholars and offering significant contributions to how we understand law and legal theory to help shape future debates.
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  48. Search, Seizure, and Immunity: Second-Order Normative Authority and Rights.Stephen E. Henderson & Kelly Sorensen - 2013 - Criminal Justice Ethics 32 (2):108-125.
    A paradigmatic aspect of a paradigmatic kind of right is that the rights holder is the only one who can alienate it. When individuals waive rights, the normative source of that waiving is normally taken to be the individual herself. This moral feature?immunity?is usually in the background of discussions about rights. We bring it into the foreground here, with specific attention to a recent U.S. Supreme Court decision, Kentucky v. King (2011), concerning search and seizure rights. An entailment of the (...)
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  49. On the Criminal Culpability of Successful and Unsucessful Psychopaths.Katrina L. Sifferd & William Hirstein - 2013 - Neuroethics 6 (1):129-140.
    The psychological literature now differentiates between two types of psychopath:successful (with little or no criminal record) and unsuccessful (with a criminal record). Recent research indicates that earlier findings of reduced autonomic activity, reduced prefrontal grey matter, and compromised executive activity may only be true of unsuccessful psychopaths. In contrast, successful psychopaths actually show autonomic and executive function that exceeds that of normals, while having no difference in prefrontal volume from normals. We argue that many successful psychopaths are legally responsible for (...)
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  50. Punishment and Moral Sentiments.Thom Brooks - 2012 - Review of Metaphysics 66 (2):281-93.
    Adam Smith's theory of punishment is rarely explored. This article examines his understanding of punishment in light of his theory of moral sentiments. My aim is to show how he is neither a retributivist or deterrence advocate, but instead defends a more unified theory of punishment bringing different penal goals together in a new framework.
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