Year:

Forthcoming articles
  1.  25
    Jason Brennan (forthcoming). When Consequences Matter More: In Defense of Instrumentalism About Private Versus Public Prisons. Criminal Law and Philosophy:1-15.
    Alon Harel wants to show that punishment is a kind of symbolic expression that, as a matter of metaphysical necessity, can only be performed by governmental agents. Contrary to Harel, I argue private agents can in fact realize those features he argues only public agents can realize. I also argue that, even if he were right that only public guards and wardens can punish, it’s unclear why we would have an all-things-considered rather than merely a pro tanto/prima facie duty to (...)
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  2.  12
    Alasdair Cochrane (forthcoming). Prison on Appeal: The Idea of Communicative Incarceration. Criminal Law and Philosophy:1-18.
    In the classic abolitionist text, Prison on Trial, Thomas Mathieson argues that imprisonment cannot be justified by appeal to any standard punitive aim: rehabilitation, deterrence, incapacitation, or retribution. The aim of this paper is to give prison an ‘appeal hearing’: to examine whether it can be justified by a set of punitive aims not considered by Mathieson. In particular, it asks whether imprisonment can be justified by the ‘communicative’ theory of punishment proposed by Antony Duff. Duff sees imprisonment as having (...)
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  3. John Danaher (forthcoming). Robotic Rape and Robotic Child Sexual Abuse: Should They Be Criminalised? Criminal Law and Philosophy:1-25.
    Soon there will be sex robots. The creation of such devices raises a host of social, legal and ethical questions. In this article, I focus in on one of them. What if these sex robots are deliberately designed and used to replicate acts of rape and child sexual abuse? Should the creation and use of such robots be criminalised, even if no person is harmed by the acts performed? I offer an argument for thinking that they should be. The argument (...)
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  4.  37
    Marion Godman & Anneli Jefferson (forthcoming). On Blaming and Punishing Psychopaths. Criminal Law and Philosophy:1-16.
    Current legal practice holds that a diagnosis of psychopathy does not remove criminal responsibility. In contrast, many philosophers and legal experts are increasingly persuaded by evidence from experimental psychology and neuroscience indicating moral and cognitive deficits in psychopaths and have argued that they should be excused from moral responsibility. However, having opposite views concerning psychopaths’ moral responsibility, on the one hand, and criminal responsibility, on the other, seems unfortunate given the assumption that the law should, at least to some extent, (...)
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  5.  43
    Alexander A. Guerrero (forthcoming). Appropriately Using People Merely as a Means. Criminal Law and Philosophy:1-18.
    There has been a great deal of philosophical discussion about using people, using people intentionally, using people as a means to some end, and using people merely as a means to some end. In this paper, I defend the following claim about using people: NOT ALWAYS WRONG: using people—even merely as a means—is not always morally objectionable. Having defended that claim, I suggest that the following claim is also correct: NO ONE FEATURE: when it is morally objectionable to use people (...)
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  6. Jennifer Hendry & Colin King (forthcoming). Expediency, Legitimacy, and the Rule of Law: A Systems Perspective on Civil/Criminal Procedural Hybrids. Criminal Law and Philosophy:1-25.
    In recent years an increasing quantity of UK legislation has introduced blended or ‘hybridised’ procedures that blur the previously clear demarcation between civil and criminal legal processes, typically on the grounds of normatively-motivated political expediency. This paper provides a critical perspective on instances of procedural hybridisation in order to illustrate that, first, the reliance upon civil law measures to remedy criminal law infractions can raise human rights issues and, second, that such instrumental criminal justice strategies deliberately circumvent the enhanced procedural (...)
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  7.  11
    Matt King (forthcoming). Against Personifying the Reasonable Person. Criminal Law and Philosophy:1-8.
    One way in which fact finders are supposed to determine the reasonableness of a defendant is via a counterfactual test that personifies the reasonable person. We are to imagine the reasonable person being in the defendant’s circumstances. Then we are to determine whether the reasonable person would have done as the defendant did. This paper argues that, despite its prevalence, the counterfactual test is a hopeless guide to determining defendant reasonability. In brief, the test is of the wrong sort to (...)
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  8.  23
    Gerald Lang (forthcoming). Legitimating Torture? Criminal Law and Philosophy:1-19.
    Steinhoff defends the moral and legal permissibility of torture in a limited range of circumstances. This article criticizes Steinhoff’s arguments. The analogy between ordinary defensive violence and defensive torture which Steinhoff argues for is partly spoiled by the presence, within defensive torture, of opportunistic harm, in addition to eliminative harm. Steinhoff’s arguments that the mere legalization of defensive torture would not metastasize into a more full-fledged institutionalization of torture are also found wanting. As a minimal form of institutionalization, the mere (...)
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  9.  35
    Rae Langton (forthcoming). Hate Speech and the Epistemology of Justice. Criminal Law and Philosophy:1-9.
    In ‘The Harm in Hate Speech’ Waldron’s most interesting and ground-breaking contribution lies in a distinctive epistemological role he assigns to hate speech legislation: it is necessary for assurance of justice, and thus for justice itself. He regards public social recognition of what is owed to citizens as a public good, contributing to basic dignity and social standing of citizens. His claim that hate speech in the public social environment damages assurance of justice has wider implications, I argue: for hate (...)
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  10.  11
    Richard L. Lippke (forthcoming). Punishment Drift: The Spread of Penal Harm and What We Should Do About It. Criminal Law and Philosophy:1-15.
    It is well documented that the effects of legal punishment tend to drift to the family members, friends, and larger communities of convicted offenders. Instead of conceiving of punishment drift as incidental to legal punishment, or as merely foreseen but not intended by state authorities and thus permissible, I argue that efforts ought to be undertaken to limit or ameliorate it. Failure to confine punishment drift comes perilously close to punishment of the innocent and is at odds with other legal (...)
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  11. Thomas Søbirk Petersen (forthcoming). On the Offense Principle: Some New Challenges. Criminal Law and Philosophy.
     
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  12.  18
    Linda Radzik (forthcoming). Desert of What? On Murphy’s Reluctant Retributivism. Criminal Law and Philosophy:1-13.
    In Punishment and the Moral Emotions, Jeffrie Murphy rejects his earlier, strong endorsements of retributivism. Questioning both our motivations for embracing retributivism and our views about the basis of desert, he now describes himself as a “reluctant retributivist.” In this essay, I argue that Murphy should reject retributivism altogether. Even if we grant that criminals have negative desert, why should we suppose that it is desert of suffering? I argue that it is possible to defend desert-based theories of punishment that (...)
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  13.  4
    Re’em Segev (forthcoming). Responsibility and Justificatory Defenses. Criminal Law and Philosophy:1-14.
    Criminal prohibitions typically forbid harming people. Justificatory defenses, such as lesser evil, justifying necessity and justifying self-defense, provide exceptions to such prohibitions if certain conditions are met. One common condition is that the agent is not responsible for the conflict. The questions whether justificatory defenses should include such a condition, and if so what should be its content, are controversial. I argue that responsibility for a conflict counts against protecting the responsible person at the expense of a non-responsible or a (...)
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  14.  17
    Matthew Talbert (forthcoming). Symmetry, Rational Abilities, and the Ought-Implies-Can Principle. Criminal Law and Philosophy:1-14.
    In Making Sense of Free Will and Moral Responsibility Dana Nelkin defends the “rational abilities view.” According to this view, agents are responsible for their behavior if and only if they act with the ability to recognize and act for good reasons. It follows that agents who act well are open to praise regardless of whether they could have acted differently, but agents who act badly are open to blame only if they could have acted on the moral reasons that (...)
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  15.  28
    Manuel R. Vargas (forthcoming). Responsibility and the Limits of Conversation. Criminal Law and Philosophy:1-20.
    Both legal and moral theorists have offered broadly “communicative” theories of criminal and moral responsibility. According to such accounts, we can understand the nature of responsibility by appealing to the idea that responsibility practices are in some fundamental sense expressive, discursive, or communicative. In this essay, I consider a variety of issues in connections with this family of views, including its relationship to free will, the theory of exemptions, and potential alternatives to the communicative model. Focusing on Michael McKenna’s Conversation (...)
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  16.  20
    Ralph Wedgwood (forthcoming). Two Grades of Non-Consequentialism. Criminal Law and Philosophy:1-20.
    In this paper, I explore how to accommodate non-consequentialist constraints with a broadly value-based conception of reasons for action. It turns out that there are two grades of non-consequentialist constraints. The first grade involves attaching ethical importance to such distinctions as the doing/allowing distinction, and the distinction between intended and unintended consequences that is central to the Doctrine of Double Effect. However, at least within the value-based framework, this first grade is insufficient to explain rights, which ground weighty reasons against (...)
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  17.  10
    Ana Aliverti (forthcoming). The Wrongs of Unlawful Immigration. Criminal Law and Philosophy:1-17.
    For too long, criminal law scholars overlooked immigration-based offences. Claims that these offences are not ‘true crimes’ or are a ‘mere camouflage’ to pursue non-criminal law aims deflect attention from questions concerning the limits of criminalization and leave unchallenged contradictions at the heart of criminal law theory. My purpose in this paper is to examine these offences through some of the basic tenets of criminal law. I argue that the predominant forms of liability for the most often used immigration offences (...)
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  18.  3
    S. Armstrong (forthcoming). Philosophy as Capacity. Criminal Law and Philosophy.
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  19. S. Armstrong (forthcoming). Review Of: R. Lippke's, The Ethics of Plea Bargaining. [REVIEW] Criminal Law and Philosophy.
     
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  20.  3
    Daniel Bansal (forthcoming). Nicola Lacey: In Search of Criminal Responsibility: Ideas, Interests, and Institutions. Criminal Law and Philosophy:1-5.
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  21.  18
    François Boucher & Cécile Laborde (forthcoming). Why Tolerate Conscience? Criminal Law and Philosophy:1-21.
    In Why Tolerate Religion?, Brian Leiter argues against the special legal status of religion, claiming that religion should not be the only ground for exemptions to the law and that this form of protection should be, in principle, available for the claims of secular conscience as well. However, in the last chapter of his book, he objects to a universal regime of exemptions for both religious and secular claims of conscience, highlighting the practical and moral flaws associated with it. We (...)
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  22.  10
    Kimberley Brownlee (forthcoming). Reply to Critics. Criminal Law and Philosophy:1-19.
    This article responds to the four contributors to the book symposium on Conscience and Conviction: The Case for Civil Disobedience. Those four contributors are Thomas Hill Jr, David Lefkowitz, William Smith, and Daniel Weinstock. Hill examines the concepts of conviction and conscience ; Smith discusses conviction and then analyses the right to civil disobedience and my humanistic arguments for it ; Weinstock explores democratic challenges for civil disobedience ; and Lefkowitz assesses the merits of a legal demands-of-conviction excuse for civil (...)
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  23.  41
    Henrique Carvalho (forthcoming). Liberty and Insecurity in the Criminal Law: Lessons From Thomas Hobbes. Criminal Law and Philosophy:1-23.
    In this paper, I provide an extensive examination of the political theory of Thomas Hobbes in order to discuss its relevance to an understanding of contemporary issues and challenges faced by criminal law and criminal justice theory. I start by proposing that a critical analysis of Hobbes’s account of punishment reveals a paradox that not only is fundamental to understanding his model of political society, but also can offer important insights into the preventive turn experienced by advanced liberal legal systems. (...)
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  24.  8
    Peter Chau (forthcoming). Bennett’s Expressive Justification of Punishment. Criminal Law and Philosophy:1-19.
    In this paper, I will critically assess the expressive justification of punishment recently offered by Christopher Bennett in The Apology Ritual and a number of papers. I will first draw a distinction between three conceptions of expression: communicative, motivational, and symbolic. After briefly demonstrating the difficulties of using the first two conceptions of expression to ground punishment and showing that Bennett does not ultimately rely on those two conceptions, I argue that Bennett’s account does not succeed because he fails to (...)
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  25.  9
    Vincent Chiao (forthcoming). Mass Incarceration and the Theory of Punishment. Criminal Law and Philosophy:1-22.
    An influential strain in the literature on state punishment analyzes the permissibility of punishment in exclusively deontological terms, whether in terms of an individual’s rights, the state’s obligation to vindicate the law, or both. I argue that we should reject a deontological theory of punishment because it cannot explain what is unjust about mass incarceration, although mass incarceration is widely considered—including by proponents of deontological theories—to be unjust. The failure of deontological theories suggests a minimum criterion of adequacy for a (...)
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  26.  6
    Darin Clearwater (forthcoming). ‘‘If the Cloak Doesn’T Fit, You Must Acquit’: Retributivist Models of Preventive Detention and the Problem of Coextensiveness. Criminal Law and Philosophy:1-22.
    Persons who are dangerous and legally responsible, but who have not yet committed any currently recognised criminal offence, fall within the gap left between the domains of criminal justice and civil commitment. Many jurisdictions operate legal regimes that permit the detention of such persons in order to prevent the occurrence of anticipated criminal harms. These regimes often either fail to respect the principle of proportionality or contradictorily treat a dangerous offender as both legally responsible and not responsible at the same (...)
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  27.  17
    Fiery Cushman (forthcoming). The Psychological Origins of the Doctrine of Double Effect. Criminal Law and Philosophy:1-14.
    The doctrine of double effect (DDE) is a moral principle that distinguishes between harm we cause as a means to an end and harm that we cause as a side-effect. As a purely descriptive matter, the DDE is well established that it describes a consistent feature of human moral judgment. There are, however, several rival theories of its psychological cause. I review these theories and consider their advantages and disadvantages. Critically, most extant psychological theories of the DDE regard it as (...)
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  28.  21
    Candice Delmas (forthcoming). Disobedience, Civil and Otherwise. Criminal Law and Philosophy:1-17.
    While philosophers usually agree that there is room for civil disobedience in democratic societies, they disagree as to the proper justification and role of civil disobedience. The field has so far been divided into two camps—the liberal approach on the one hand, which associates the justification and role of civil disobedience with the good of justice, and the democratic approach on the other, which connects them with the value and good of democracy. William Smith’s Civil Disobedience and Deliberative Democracy offers (...)
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  29.  14
    Göran Duus-Otterström (forthcoming). Fairness-Based Retributivism Reconsidered. Criminal Law and Philosophy:1-18.
    In this paper, I defend fairness-based retributivism against two important objections, the no-benefit objection and the social injustice objection. I argue that the theory can defeat the no-benefit objection by developing an account of how crimes can be sources of unfairness by inflicting losses on people, and that it can blunt the social injustice objection by toning down the theory’s distributive aspirations. I conclude that fairness-based retributivism, contrary to received wisdom, merits further attention from legal and political philosophers.
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  30.  3
    Kimberly Kessler Ferzan & Peter Westen (forthcoming). How to Think About Rape. Criminal Law and Philosophy:1-42.
    From the American Law Institute to college campuses, there is a renewed interest in the law of rape. Law school faculty, however, may be reluctant to teach this deeply debated topic. This article begins from the premise that controversial and contested questions can be best resolved when participants understand the conceptual architecture that surrounds and delineates the normative questions. This allows participants to talk to one another instead of past each other. Accordingly, in this article, we begin by diffusing two (...)
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  31.  4
    Steven Freeland & Pernille Walther (forthcoming). Reimagining the Unimaginable? Reflections on Mark A. Drumbl's Vision of Child Soldiers. Criminal Law and Philosophy:1-12.
    The existence of child soldiers is a problem of the ages, and there are no positive signs that it is abating. The difference now is that, with the development of modern weapons technology, children can be involved in large scale and horrific acts during conflicts. The circumstances surrounding the use of children to wage war will vary from situation to situation. Yet, it has been suggested that many people seem to have a ‘single focussed’ view of what child soldiers look (...)
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  32.  3
    Alon Harel (forthcoming). Defending WhyLawMatters: Responses to Commentaries. Criminal Law and Philosophy:1-13.
    WhyLawMatters examines various legal and political institutions and procedures and argues that the desirability of these institutions and procedures is not contingent and does not hinge on the prospects that these institutions are conducive to the realization of valuable ends. Instead, various legal institutions and legal procedures that are often perceived as contingent means to facilitate the realization of valuable ends matter assuch.
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  33.  2
    Adam Henschke (forthcoming). Seumas Miller and Ian A. Gordon: Investigative Ethics: Ethics for Police Detectives and Criminal Investigators. Criminal Law and Philosophy:1-3.
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  34.  4
    M. Beth Henzel (forthcoming). Defense Categories and the De Minimis Defense. Criminal Law and Philosophy:1-15.
    De minimis defenses are an understudied aspect of law, appearing in legal practice more often than in legal theory but rarely garnering any type of extensive analysis in either. This has led to an unfortunate state of affairs in which one term is applied to a set of practices that are, at best, only loosely connected. Using Paul Robinson’s system of defense types, this paper will illustrate the various roles and functions the de minimis defense plays in our legal system. (...)
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  35.  11
    Thomas E. Hill (forthcoming). Conscientious Conviction and Conscience. Criminal Law and Philosophy:1-16.
    In this paper, I examine critically Kimberley Brownlee’s descriptive criteria for identifying when a person has a conscientious moral conviction. Then, I contrast her conception of conscience with other ideas of conscience, including a religious conception, a relativist conception, and those of Butler and Kant. The concepts examined here are central in her argument that, if civil disobedience is grounded in citizens’ conscience-based conscientious convictions, then it deserves legal and moral protection.
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  36.  3
    Chloë Kennedy (forthcoming). Lindsay Farmer: Making the Modern Criminal Law: Criminalization and Civil Order. Criminal Law and Philosophy:1-8.
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  37.  16
    John Kleinig (forthcoming). Paternalism and Human Dignity. Criminal Law and Philosophy:1-18.
    This paper explores the possibility that some cases of criminal paternalism might include among their justifying reasons an appeal to human dignity.
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  38.  18
    David Lefkowitz (forthcoming). Should the Law Convict Those Who Act From Conviction? Reflections on a Demands-of-Conscience Criminal Defense. Criminal Law and Philosophy:1-19.
    How should the judge or jury in a just criminal court treat a civil disobedient, someone who performs a conscientiously motivated communicative breach of the criminal law? Kimberley Brownlee contends that all else equal a court of law should neither convict nor punish such offenders. Though I agree with this conclusion, I contend that Brownlee mischaracterizes the nature of the criminal defense to which civil disobedients are entitled. Whereas Brownlee maintains that such actors ought to be excused for their criminal (...)
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  39.  28
    S. Matthew Liao (forthcoming). The Closeness Problem and the Doctrine of Double Effect: A Way Forward. Criminal Law and Philosophy:1-15.
    A major challenge to the Doctrine of Double Effect is the concern that an agent’s intention can be identified in such a fine-grained way as to eliminate an intention to harm from a putative example of an intended harm, and yet, the resulting case appears to be a case of impermissibility. This is the so-called “closeness problem.” Many people believe that one can address the closeness problem by adopting Warren Quinn’s version of the DDE, call it DDE*, which distinguishes between (...)
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  40.  9
    Victoria McGeer & Friederike Funk (forthcoming). Are ‘Optimistic’ Theories of Criminal Justice Psychologically Feasible? The Probative Case of Civic Republicanism. Criminal Law and Philosophy:1-22.
    ‘Optimistic’ normative theories of criminal justice aim to justify criminal sanction in terms of its reprobative/rehabilitative value rather than its punitive nature as such. But do such theories accord with ordinary intuitions about what constitutes a ‘just’ response to wrongdoing? Recent empirical work on the psychology of punishers suggests that human beings have a ‘brutely retributive’ moral psychology, making them unlikely to endorse normative theories that sacrifice retribution for the sake of reprobation or rehabilitation; it would mean, for example, that (...)
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  41.  24
    Michael McKenna (forthcoming). Manipulation Arguments, Basic Desert, and Moral Responsibility: Assessing Derk Pereboom’s Free Will, Agency, and Meaning in Life. Criminal Law and Philosophy:1-15.
    In this paper I critically assess Derk Pereboom’s book, Free Will, Agency, and Meaning in Life. In it, I resist Pereboom’s manipulation argument for incompatibilism and his indictment of desert-based accounts of moral responsibility.
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  42.  20
    Alfred R. Mele (forthcoming). On Pereboom’s Disappearing Agent Argument. Criminal Law and Philosophy:1-14.
    This article is a critical discussion of Derk Pereboom’s “disappearing agent objection” to event-causal libertarianism in his Free Will, Agency, and Meaning in Life. This objection is an important plank in Pereboom’s argument for free will skepticism. It is intended to knock event-causal libertarianism, a leading pro-free-will view, out of contention. I explain why readers should not find the objection persuasive.
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  43.  9
    Emmanuel Melissaris (forthcoming). Posthumous ‘Punishment’: What May Be Done About Criminal Wrongs After the Wrongdoer’s Death? Criminal Law and Philosophy:1-17.
    The commission of criminal wrongs is occasionally revealed after the wrongdoer’s death. In such cases, there seems to be a widely-shared intuition, which also frequently motivates many people’s actions, that the dead should still be blamed and that some response, not only stemming from civil society but also the state, to the criminal wrong is necessary. This article explores the possibility of posthumous blame and punishment by the state. After highlighting the deficiencies of the pure versions of retributivism and general (...)
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  44.  18
    Dana Kay Nelkin & Samuel C. Rickless (forthcoming). The Relevance of Intention to Criminal Wrongdoing. Criminal Law and Philosophy:1-18.
    In this paper, we defend the general thesis that intentions are relevant not only to moral permissibility and impermissibility, but also to criminal wrongdoing, as well as a specific version of the Doctrine of Double Effect that we believe can help solve some challenging puzzles in the criminal law. We begin by answering some recent arguments that marginalize or eliminate the role of intentions as components of criminal wrongdoing [e.g., Alexander and Ferzan , Chiao , Walen ]. We then turn (...)
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  45.  5
    Michael S. Pardo & Dennis Patterson (forthcoming). Morse, Mind, and Mental Causation. Criminal Law and Philosophy:1-16.
    Stephen Morse’s illuminating scholarship on law and neuroscience relies on a “folk psychological” account of human behavior in order to defend the law’s foundations for ascribing legal responsibility. The heart of Morse’s account is the notion of “mental state causation,” in which mental states (e.g., beliefs, desires, and intentions) cause behavior. Morse argues that causation of this sort is necessary to support legal responsibility. We challenge this claim. First, we discuss problems with the conception of mental causation on which Morse (...)
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  46.  2
    Federico Picinali (forthcoming). The Denial of Procedural Safeguards in Trials for Regulatory Offences: A Justification. Criminal Law and Philosophy:1-23.
    Regulatory offences are a complex phenomenon, presenting problematic aspects both at the level of criminalisation and at the level of enforcement. The literature abounds in works that study the phenomenon. There is, however, an aspect that has remained largely unexplored. It concerns the relationship between the regulatory framework within which the crime occurs and the procedural safeguards that defendants normally enjoy at trial or at the pre-trial stage: defendants tried for regulatory offences are often denied safeguards that are generally considered (...)
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  47.  10
    Jonathan Pugh & Hannah Maslen (forthcoming). ‘Drugs That Make You Feel Bad’? Remorse-Based Mitigation and Neurointerventions. Criminal Law and Philosophy:1-24.
    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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  48.  42
    Jonathan Quong (forthcoming). Agent-Relative Prerogatives to Do Harm. Criminal Law and Philosophy:1-15.
    In this paper, I offer two arguments in support of the proposition that there are sometimes agent-relative prerogatives to impose harm on nonliable persons. The first argument begins with a famous case where most people intuitively agree it is permissible to perform an act that results in an innocent person’s death, and where there is no liability-based or consequentialist justification for acting. I show that this case is relevantly analogous to a case involving the intentional imposition of lethal defensive harm (...)
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  49.  7
    Alexander Sarch (forthcoming). Double Effect and the Criminal Law. Criminal Law and Philosophy:1-27.
    American criminal law is committed to some version of the doctrine of double effect. In this paper, I defend a new variant of the agent-centered rationale for a version of DDE that is of particular relevance to the criminal law. In particular, I argue for a non-absolute version of DDE that concerns the relative culpability of intending a bad or wrongful state of affairs as opposed to bringing it about merely knowingly. My aim is to identify a particular feature of (...)
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  50.  19
    Carolina Sartorio (forthcoming). Vihvelin on Frankfurt-Style Cases and the Actual-Sequence View. Criminal Law and Philosophy:1-14.
    This is a critical discussion of Vihvelin’s recent book Causes, Laws, and Free Will. I discuss Vihvelin’s ideas on Frankfurt-style cases and the actual-sequence view of freedom that is inspired by them.
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  51.  10
    Adam Slavny (forthcoming). Alon Harel on How to Deliberate Permissibly. Criminal Law and Philosophy:1-14.
    Alon Harel defines extreme cases as those in which the only way to avert a destructive threat is to harm innocent people. He rejects traditional consequentialist and non-consequentialist approaches because of the type of reasoning they both employ. I interpret Harel as making two central objections to this form of reasoning. First, traditional approaches require comparisons to be made about the value of human life. Second, decisions in extreme cases, even if permissible, should not be made under the guidance of (...)
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  52.  11
    Saul Smilansky (forthcoming). Pereboom on Punishment: Funishment, Innocence, Motivation, and Other Difficulties. Criminal Law and Philosophy:1-13.
    In Free Will, Agency, and Meaning in Life, Derk Pereboom proposes an optimistic model of life that follows on the rejection of both libertarian and compatibilist beliefs in free will, moral responsibility, and desert. I criticize his views, focusing on punishment. Pereboom responds to my earlier argument that hard determinism must seek to revise the practice of punishment in the direction of funishment, whereby the incarcerated are very generously compensated for the deprivations of incarceration. I claimed that funishment is a (...)
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  53.  16
    William Smith (forthcoming). The Burdens of Conviction: Brownlee on Civil Disobedience. Criminal Law and Philosophy:1-14.
    Kimberley Brownlee’s Conscience and Conviction offers a powerful defence of civil disobedience as a conscientious and communicative mode of protest. The overall argument of the book is important and compelling, but this critical commentary explores certain aspects of Brownlee’s view that warrant further consideration and clarification. Those aspects relate to her suggestion that civil disobedience is a dialogic mode of communication, her attempt to ground a moral right of civil disobedience in a principle of humanism, and her belief that the (...)
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  54.  3
    Tom Sorell (forthcoming). Online Grooming and Preventive Justice. Criminal Law and Philosophy:1-20.
    In England and Wales, Section 15 of the Sexual Offences Act criminalizes the act of meeting a child—someone under 16—after grooming. The question to be pursued in this paper is whether grooming—I confine myself to online grooming—is justly criminalized. I shall argue that it is. One line of thought will be indirect. I shall first try to rebut a general argument against the criminalization of acts that are preparatory to the commission of serious offences. Grooming is one such act, but (...)
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  55.  6
    Alessandro Spena (forthcoming). A Just Criminalization of Irregular Immigration: Is It Possible? Criminal Law and Philosophy:1-23.
    The aim of this paper is to question, from the perspective of a principled theory of criminalization, the legitimacy of making irregular immigration a crime. In order to do this, I identify three main ways in which the political decision to introduce a crime of IM may be defended: according to the first, IM is a malum in se the wrongness of which resides in its being a violation of states’ territorial sovereignty; according to the second, IM is a justified (...)
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  56.  18
    Victor Tadros (forthcoming). Moving Mountains: Variations on a Theme by Shelly Kagan. Criminal Law and Philosophy:1-13.
    My response to Shelly Kagan’s book, The Geometry of Desert, is to raise both general and more specific issues. I criticise Kagan’s way of setting up his project. I will suggest many factors other than desert better explain Kagan’s cases. I then examine more particular aspects of the project. I investigate Kagan’s discussion of what he calls the V-shaped skyline. According to Kagan, the V-shaped skyline represents the idea that it is more important that the very vicious and the very (...)
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  57.  18
    Victor Tadros (forthcoming). Punishment and the Appropriate Response to Wrongdoing. Criminal Law and Philosophy:1-20.
    My main aims in this paper are to further clarify and defend the Duty View of punishment, outlined in my book The Ends of Harm, by responding to some objections to it, and by exploring some variations on that view. I briefly lay out some steps in the justification of punishment that I defend more completely in Chapter 12 of The Ends of Harm. I offer some further support for these steps. They justify punishment of an offender for general deterrence (...)
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  58.  12
    Victor Tadros (forthcoming). Doing Without Desert. Criminal Law and Philosophy:1-12.
    This paper examines Derk Pereboom’s argument against punishment on deterrent grounds in his recent book Free Will, Agency, and Meaning in Life. It suggests that Pereboom’s argument against basic desert has not been shown to extend to the view that those who act wrongly lose rights against punishment for deterrent reasons. It further supports the view that those who act wrongly, if they fulfil compatibilist conditions of responsibility, do lose rights to avert threats they pose. And this, it is argued, (...)
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  59.  6
    Jens Damgaard Thaysen (forthcoming). Infidelity and the Possibility of a Liberal Legal Moralism. Criminal Law and Philosophy:1-22.
    This paper argues that according to the influential version of legal moralism presented by Moore infidelity should all-things-considered be criminalized. This is interesting because criminalizing infidelity is bound to be highly controversial and because Moore’s legal moralism is a prime example of a self-consciously liberal legal moralism, which aims to yield legislative implications that are quite similar to liberalism, while maintaining that morality as such should be legally enforced. Moore tries to make his theory yield such implications, first by claiming (...)
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  60.  8
    Laura Valentini (forthcoming). On the Value of Constitutions and Judicial Review. Criminal Law and Philosophy:1-16.
    In his thought-provoking book, Why Law Matters, Alon Harel defends two key claims: one ontological, the other axiological. First, he argues that constitutions and judicial review are necessary constituents of a just society. Second, he suggests that these institutions are not only means to the realization of worthy ends, but also non-instrumentally valuable. I agree with Harel that constitutions and judicial review have more than instrumental value, but I am not persuaded by his arguments in support of this conclusion. I (...)
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  61.  19
    Kevin Vallier (forthcoming). On Jonathan Quong’s Sectarian Political Liberalism. Criminal Law and Philosophy:1-20.
    Jonathan Quong’s book, Liberalism without Perfection, provides an innovative new defense of political liberalism based on an “internal conception” of the goal of public justification. Quong argues that public justification need merely be addressed to persons who affirm liberal political values, allowing people to be coerced without a public justification if they reject liberal values or their priority over comprehensive values. But, by extensively restricting members of the justificatory public to a highly idealized constituency of liberals, Quong’s political liberalism becomes (...)
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  62.  4
    Erica von Essen & Michael P. Allen (forthcoming). Reconsidering Illegal Hunting as a Crime of Dissent: Implication for Justice and Deliberative Uptake. Criminal Law and Philosophy:1-16.
    In this paper, we determine whether illegal hunting should be construed as a crime of dissent. Using the Nordic countries as a case study where protest-driven, illegal hunting of protected wolves is on the rise, we reconsider the crime using principles of civil disobedience. We invoke the conditions of intentionality, nonevasion, dialogic effort, non-violence and appeal to parameters of reasonable disagreement about justice and situate the Nordic illegal hunting phenomenon at a nexus between conscientious objection, assisted disobedience and everyday resistance. (...)
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  63.  9
    Alec Walen (forthcoming). Introduction to the Special Issue on Deontology and the Criminal Law. Criminal Law and Philosophy:1-3.
    Deontology holds that the rules or principles that govern the permissibility of actions cannot be derived simply from the goal of promoting good consequences. The definition has to be given negatively because there is still much disagreement about what positively grounds these rules or principles. The articles in this special issue—collected mostly from papers presented at a conference sponsored by the Institute for Law and Philosophy at Rutgers UniversityOne paper in this issue, from Gerhard Øverland, was not presented at the (...)
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  64.  21
    Daniel Weinstock (forthcoming). How Democratic is Civil Disobedience? Criminal Law and Philosophy:1-14.
    In her book, Conscience and Conviction, Kimberley Brownlee argues that there is nothing undemocratic about the robust, primary right to civil disobedience that she devotes most of her argument to defending. To the contrary, she holds that there is nothing paternalistic about civil disobedients opposing the will of democratic majorities, because, inter alia, democratic majorities cannot claim particular epistemic superiority, and because there are flaws inherent to democratic procedures that civil disobedience addresses. I hold that Brownlee’s arguments fail. In particular, (...)
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  65.  18
    Leo Zaibert (forthcoming). On the Matter of Suffering: Derek Parfit and the Possibility of Deserved Punishment. Criminal Law and Philosophy:1-18.
    Derek Parfit has recently defended the view that no one can ever deserve to suffer. Were this view correct, its implications for the thorny problem of the justification of punishment would be extraordinary: age-old debates between consequentialists and retributivists would simply vanish, as punishment would only—and simply—be justifiable along Benthamite utilitarian lines. I here suggest that Parfit’s view is linked to uncharacteristically weak arguments, and that it ought to be rejected.
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  66.  20
    Gerhard Øverland (forthcoming). Self-Defense and Giving Rise to Cost: On Innocent Bystanders, Threats, Obstructors, and Obstacles, and the Permissibility to Harm Them. Criminal Law and Philosophy:1-17.
    Philosophers have had trouble defending the common sense view that it is permissible to impose significant cost on an innocent person who is about to harm you to prevent the harm from occurring. In this paper, I argue that such harm can be justified if one pays attention to the moral significance of imposing a cost on others. The constraint against harming people who give rise to cost by their presence or movements is weaker than the constraint against harming bystanders. (...)
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