In criminal law, the mental state of the defendant is a crucial determinant of the grade of crime that the defendant has committed and of whether the conduct is criminal at all. Under the widely accepted modern hierarchy of mental states, an actor is most culpable for causing harm purposely and progressively less culpable for doing so knowingly, recklessly, or negligently. Notably, this hierarchy emphasizes cognitive rather than conative mental states. But this emphasis, I argue, is often unjustified. When we (...) punish and blame for wrongful acts, we should look beyond the cognitive dimensions of the actor’s culpability and should consider affective and volitional dimensions as well, including the actor’s intentions, motives, and attitudes. One promising alternative mental state is the attitude of culpable indifference. However, we must proceed carefully when permitting criminal liability to turn on culpable indifference and similar attitudes, lest we punish vicious or unvirtuous feelings that are no.. (shrink)

Erleichtert die Konzeptualisierung der Patientenverfügung als bloßes Indiz für den mutmaßlichen Willen die notwendige Einbeziehung eines relationalen Autonomieverständnisses in eine zunehmend kulturübergreifende Bioethik? Ich lege dar, dass die Berücksichtigung relationaler Autonomiekonzepte kein überzeugendes Argument für die Bestimmung der Patientenverfügung als bloßes Indiz für den mutmaßlichen Willen ist, sondern vielmehr – neben einer Reihe anderer Argumente – für die Patientenverfügung als verbindliche Willensbekundung spricht. Diese erweist sich als flexibel genug, um unterschiedlichen Formen von Autonomie gerecht zu werden.

Egyptians had many reasons to overthrow the government of Hosni Mubarak, and to challenge the legitimacy of the interim military government. Strikingly, among the leading reasons for the uprising and for continued protest are reasons grounded in criminal justice. Reflection on this dimension of the Egyptian uprising invites a broader examination of the relationship between criminal justice and political legitimacy. While criminal justice is neither necessary nor sufficient for political legitimacy, criminal injustice substantially undermines political legitimacy and can provide independent (...) reasons for revolution. A state may compromise its legitimacy by committing criminal acts, by perverting or subverting the criminal process, and by failing to discharge its duty to punish serious wrongdoing—a duty that then falls to individuals to discharge either directly (through vigilantism) or indirectly (through revolution). Contrary to the views of many leading criminal law theorists, the duty to punish serious wrongdoing applies to individuals and not only to states. The relevance of political legitimacy to criminal justice is more complicated. Individuals are morally obligated to follow the morally justified laws of an illegitimate state, but are not morally obligated to follow the morally unjustified laws of a legitimate state. Nor may any state punish in the absence of moral wrongdoing and moral fault. However, illegitimate states may be incapable of justly holding individuals accountable to the state, to the community, or to victims through criminal trials. This incapacity provides an additional reason to overthrow illegitimate states and replace them with legitimate states capable of justly administering a just criminal law. (shrink)

The paper suggests that there are two different ways in which a legal system restricts an individual’s rights. It can either grant a power that revokes the legal protection of the right or it can acknowledge the infringement of a legal right and yet justify such an infringement by means of a criminal law justification. The distinction proposed by the paper has both expressive and practical implications and is useful in solving dilemmas arising in emergencies when constitutional constraints make it (...) impossible to grant the power to revoke legal protection of a basic right. In some of these situations a criminal law justification might support infringement of such a right. This claim is demonstrated by analyzing the ruling of the German Constitutional Court concerning the shooting down of a hijacked airplane in circumstances similar to those of September 11. (shrink)

In recent years, the advancements made in the field of neuroscience have been echoed in criminal law, reigniting the discussion on culpability from the viewpoint of if it actually exists, considering the echoes of determinism on the re-found non-existence of free will. This discussion has triggered, once again, the issue of the boundaries and inter-relations between law and science, namely on whether normative or legal concepts and categories should acknowledge scientific breakthroughs. Bringing forth the theme of the limits of the (...) law, this discussion is able to provide insight, with reference to a specific problem, as to whether there are plausible legal answers in the context of the ascription of liability if the subject of law ceases to be a responsible—and thus free—person. Taking into consideration evolution both of science and criminal law dogmatic, we aim to argue that in the particular case of culpability, the desired autonomy of law has its limitations, and that without such limitations the ascription of liability would not have a correct answer. For this argument we will firstly approach the meaning of culpability as a milestone of subjective responsibility in criminal law, so that we can then analyse some arguments made regarding the impact of neuroscience on the maintenance of a concept of culpability with the meaning given above, so that lastly we can proceed to the rebuttal of the overarching impact of science on the law and advocate the autonomy of culpability within the necessary limits imposed by the needs of a plausible legal answer. (shrink)

This essay proposes a theory of excuse that, without blending it into exculpation, avoids the condonation of crime. The question it takes up is: given that neither compulsion by circumstances nor by human threats removes the legal reason for punishing, how can its exonerating force be rendered compatible with the state’s general duty to punish the guilty? The chapter criticizes various proposals for reconciling excuse with the duty to punish the guilty, including the moral involuntariness theory, the concession to frailty (...) theory, and the conformity to moral expectation theory. It then proposes a solution: moral blamelessness exonerates because it simulates the conditions for legal exculpation. Just as the exculpated actor acknowledges the legal norm of mutual respect for agents, so does the excused actor acknowledge the public reason of the self-sufficient political community of which the legal norm is a part. The author argues that this theory would excuse the altruistic no less than the self-preferring murderer. (shrink)

Current International Criminal Law suffers from at least four theoretical shortcomings regarding its ‘concept and meaning’, ‘ius puniendi’, ‘overall function’ and ‘purposes of punishment’. These issues are intimately interrelated; in particular, any reflection upon the last two issues without having first clarified the ius puniendi would not make sense. As argued elsewhere, in an initial contribution towards a consistent theory of ICL, the ius puniendi can be inferred from a combination of the incipient supranationality of the value-based world order and (...) the world citizens’ fundamental human rights predicated upon a Kantian concept of human dignity. On this basis, it is now possible to examine the overall function of ICL. Given the fact that ICL has not yet achieved the status of an autonomous discipline, the inquiry must start with a discussion of national theories of criminalisation. The article focuses on the two most important theories of criminalisation, namely the theories of protection of Rechtsgüter and the prevention of harm. Next, it examines whether and how these national theories can be transferred to ICL. (shrink)