Online research in philosophy

Some philosophers believe that punishing convicted criminals in order to deter other, potential criminals would be morally questionable even if we had good evidence that doing so would achieve its goal, at least to a substantial degree. And they believe this because they believe that doing so would be an instance of “using” convicted criminals in a morally objectionable way. Tadros aims to show that we would indeed be “using” convicted criminals in such cases but that, while “using” others is (...) ordinarily morally wrong, there are cases in which it is in fact morally permissible (or even morally required). Moreover, he claims that punishing convicted criminals in order to deter other, potential criminals is an instance of “using” others that is sometimes clearly morally justifiable. My aim is to show how extraordinarily interesting some of Tadros’ arguments are but also why, in my view, they fail to establish the view he claims they support. I also suggest some ways in which Tadros might revise his arguments to support his central claim(s) more effectively. (shrink)

According to deterrence justifications of legal punishment, legal punishment is justified at least in part because it deters offenses. These justifications rely on important empirical assumptions, e.g., that non-punitive enforcement can't deter or that it can't deter enough. I’ll challenge these assumptions and argue that extant deterrence justifications of legal punishment fail. In the process, I examine contemporary deterrence research and argue that it provides no support for these justifications.

My contribution to this symposium is short and negative: There are no theoretical problems that attach to one’s causing the conditions that permit him to claim a defense to some otherwise criminal act. If one assesses the culpability of an actor at each of the various times he acts in a course of conduct, then it is obvious that he can be nonculpable at T2 but culpable at T1, and that a nonculpable act at T2 has no bearing on whether (...) an actor was culpable at T1 when he caused the circumstances that are exculpatory with respect to his act (or conduct) at T2. Moreover, as I interpret the Model Penal Code, it gets matters close to right on this point. (shrink)

What is the relationship between the permissibility/impermissibility of the part and the permissibility/impermissibility of the whole? Does the moral or legal status of a constituent part of an actor’s course of conduct govern the status of the actor’s whole course of conduct or, conversely, does the moral and legal status of the actor’s whole course of conduct govern the status of the constituent parts? This broader issue is examined in the more specific contexts of the contrived defense and deterrent threat (...) doctrines. The latter doctrine concerns whether a prima facie impermissible act of carrying out a threatened action may be rendered permissible if embedded within an overall permissible course of action including the issuance of a deterrent threat that fails to induce compliance. The contrived defense doctrine addresses the permissibility of an actor who contrives or culpably causes the conditions of her own defense. This essay considers the claim—advanced by Claire Finkelstein and Leo Katz—that the contrived defense and deterrent threat doctrines are sufficiently related such that the preferable approach to each doctrine informs and supports the preferable approach to the other. In each, the permissible/impermissible status of the whole governs the status of the part. Regarding contrived defenses, the impermissibility of the actor’s whole course of conduct renders the otherwise permissible constituent part relating to the defense also impermissible. And regarding deterrent threats, the permissibility of the actor’s whole course of conduct renders the otherwise impermissible constituent parts also permissible. This essay challenges the claimed linkage between the contrived defense and deterrent threat doctrines by proposing hypothetical situations in which the claimed parallel doctrines collapse into each other. As a result, the application of the preferred approaches to each doctrine generates a contradiction. (shrink)

Hart argues persuasively that majority disapproval cannot justify the government in prohibiting a form of sexual conduct, but he does not address the possibility that the intrinsic badness of a sex act might justify the government in prohibiting it. This article explains within a contractualist framework why the intrinsic badness of a sex act cannot justify the restriction of any important sexual freedom.

National and international criminal law systems are continually seeking doctrinal and theoretical frameworks to help them impose individual liability on collective perpetrators of crime. The two systems move in parallel and draw on each other. Historically, it has been mostly international criminal law that leaned on domestic legal systems for its collective modes of liability. Currently, however, it is the emerging jurisprudence of the International Criminal Court that is at the forefront of innovation, with the doctrine of indirect co-perpetration taking (...) the lead in international prosecutions. The article assesses the potential contribution as well as the limits of this compound doctrine to domestic criminal law jurisprudence, particularly with regard to small-group criminality. Four modes of indirect co-perpetration are discussed, namely shared control, concerted control, controlling board, and flawed triangle perpetration. A doctrine of indirect co-perpetration would enable liability in these modes of perpetration, perhaps with the exception of the latter, which marks the limits of its applicability. (shrink)

Imagine someone who deliberately provokes someone else into attacking him so that he can harm that person in defending himself against her attack and then claim “self-defense” when brought to court to defend himself for what he has done to her. Should he be allowed to use this defense, even though it’s clear that he has deliberately manipulated his attacker into attacking him precisely in order to be able to harm her with impunity (assuming he were allowed to use the (...) defense and thus escape legal penalties)? This question is the focal point in the paper that follows. I argue first that the case described above is indeed an instance of an “actio libera in causa,” albeit arguably one at the margins of this controversial class of cases. Then, using a view about the justification of self-defense that I have defended elsewhere, I show why I believe that, while the manipulator should not be deprived of the legal right to defend his self-defensive actions in such cases by claiming they were a legitimate matter of self-defense, there is good reason to enact laws that will allow him to be prosecuted, independently of his “self-defense” defense, for manipulating his attacker as he did, thus allowing him to harm her in self-defense and then defend his actions as purely a matter of “self-defense.”. (shrink)

When a provocateur intentionally provokes a deadly affray, the law of self-defense holds that the provocateur may not use deadly force to defend himself. Why is this so? Provocateurs are often seen as just one example of the problem of actio libera in causa, the causing of the conditions of one’s defense. This article rejects theories that maintain a one-size-fits-all approach to actio libera in causa, and argues that provocateurs need specific rules about why they forfeit their defensive rights. This (...) article further claims that provocateurs need to be distinguished from their cousins, initial aggressors, as initial aggressors engage in conduct that grounds the permissibility of the defender’s behavior whereas the provocateur’s behavior does not justify the respondent’s use of force against him. In addition, this article rejects that the basis of this forfeiture can be found in the doctrines surrounding when and why mitigation for provocation is appropriate for the respondent. Provocateurs forfeit their defensive rights for the very simple reason that they start the fight. This forfeiture occurs when they behave culpably, meaning that they subjectively appreciate that they are running the risk of causing force to be used against them and they engage in this behavior without justification or excuse. The question of when the provocateur’s behavior is justified is incredibly complex. It requires analysis of when it is that one is justified in increasing the risk of another’s wrongdoing. Any analysis of this justification must take seriously the liberty rights of the potential provocateur to engage in otherwise permissible behavior. Moreover, the determination of whether the provocateur is justified will turn on whether the later acts that he puts into motion are themselves justified. Thus, when Charles Bronson in the movie Death Wish presents himself as a victim so that muggers will attack him, the justifiability of his conduct in appearing as a vulnerable victim will turn on whether he is entitled to engage in this conduct, intending to later defend himself. This article argues that in Death Wish-type cases, the reason that the provocateur is not justified is because he becomes a vigilante, thereby usurping the role of the state and undermining rule of law values. (shrink)

Eric Mack’s “Inside Public Reason” is thorough and fair-minded review of The Order of Public Reason. My deep thanks to him for his insights, as well as his judiciousness. In these remarks I cannot take up all the important matters he raises; in particular I put aside two important issues—the analysis of the political and discussion of how contingent social processes play a fundamental role in public justification (Fred D’Agostino focuses on this second feature of The Order of Public Reason (...) in his “The Orders of Public Reason,” Analytical Philosophy, forthcoming.). I plan to take up the latter on another occasion. (shrink)

Behaviour, including criminal behaviour, takes place in lived contexts of embodied action and experience. The way in which abstract models of selfhood efface the individual as a unique, living being is a central aspect of the ‘ethical-other’ debate; if an individual is modelled as abstracted from this ‘living’ context, that individual cannot be properly or meaningfully linked with his or her behaviour, and thus cannot justly be understood as responsible. The dominant rational choice models of criminal identity in legal theory (...) involve at least a partial abstraction of this ‘unethical’ type by prioritising the rational will over the more fluid dimensions of lived reality. From a phenomenological perspective, an approach of ‘restlessness’ is proposed which precludes the development of settled or general abstract categories, and can thus move us closer to an ethical understanding of living individuals on a theoretical level. Although such a move may initially seem to threaten criminal justice with an irrational nihilism, by maintaining awareness of the irreducibility of ‘living’ reality a restless theoretical understanding of moral selfhood may be able to shape or underpin the attribution of responsibility in more practical or substantive contexts without succumbing to meaninglessness. (shrink)

I examine how deferred-prosecution agreements employed against suspected corporate criminality amount to a form of social engineering that infringes the presumption. I begin with a broad understanding of the presumption itself. Then I offer a brief description of how these agreements function. Finally I address some of the normative issues that must be confronted if legal philosophers who hold retributivist views on punishment and sentencing hope to assess this device. My judgment tends to be favorable. More importantly, I caution against (...) the facile assumption that any means to infringe the presumption is necessarily an illegitimate part of penal practice. (shrink)

The entrapment defense is a puzzle of long standing. One the one hand, we are offended by the government’s subjecting someone vulnerable to extreme temptation. It seems like something anyone might fall prey to. On the other hand, it is hard to explain why someone who actually commits, or attempts a crime, and who would be liable if anyone other than the government had tempted him, should escape punishment. His blameworthiness seems the same. This essay seeks to illuminate this puzzle (...) by showing how it parallels the long-standing debate surrounding the criminal law problem of the actio libera in causa—situations in which someone seeks to escape liability by contriving to put a certain defense in place, such as provoking his victim into attacking him, so that he can then kill him in self-defense. The parallels between the two problems do not serve to resolve either, but make them appear in a rather different light. (shrink)

This paper is about how best to understand the notion of ‘public wrongs’ in the longstanding idea that crimes are public wrongs. By contrasting criminal law with the civil laws of torts and contracts, it argues that ‘public wrongs’ should not be understood merely as wrongs that properly concern the public, but more specifically as those which the state, as the public, ought to punish. It then briefly considers the implications that this has on criminalization.

In “The Immorality of Punishment”, Michael Zimmerman attempts to show that punishment is morally unjustified and therefore wrong. In this response, I focus on two main questions. First, I examine whether Zimmerman’s empirical claims—concerning our inability to identify wrongdoers who satisfy conditions on blameworthiness and who might be reformed through punishment, and the comparative efficacy of punitive and non-punitive responses to crime—stand up to scrutiny. Second, I argue that his crucial argument from luck depends on claims about counterfactuals that ought (...) to be rejected. I conclude that though his arguments are powerful, they fall short of his ambitious aim of demonstrating that punishment is always seriously wrong. (shrink)

In The Ends of Harm Victor Tadros develops an alternative to consequentialist, and non-consequentialist retributivist, accounts of the justifiability of punishment: the duty view. Crucial to this view is the claim that wrongdoers incur an enforceable duty to remedy their wrongs. They cannot undo them, but they can do something that is almost as good—namely, by submitting to appropriate punishment, which will deter potential wrongdoers in the future, reduce their victim’s risk of suffering similar wrongs again. Admittedly, this involves harming (...) wrongdoers as a means to an end, but according to Tadros the ‘means principle’ that we should not harm others as a means, properly construed, does not apply to cases where the victim has an enforceable duty to bear the kind of harm that he or she is being made to suffer. In this article, I shall express reservations about Tadros’ defense and interpretation of the means principle. In presenting his position, Tadros also sets out some interesting anti-retributivist considerations casting doubt on the idea that wrongdoers’ suffering is non-instrumentally good. I shall challenge these. Finally, I shall suggest that the duty view may have counterintuitive implications in relation to wrongs where the offender helps to lower the risk that victims will be subjected to similar wrongs in ways other than by being punished. (shrink)

In what ways is the conduct of prosecutors constrained by the presumption of innocence? To address this question, I first develop an account of the presumption in the trial context, according to which it is a vital element in a moral assurance procedure for the justified infliction of legal punishment. Jurors must presume the factual innocence of defendants at the outset of trials and then be convinced beyond a reasonable doubt by the government’s evidence before they convict defendants. Prosecutors’ responsibilities (...) to promote the integrity of this moral assurance procedure are then divided into pre-trial, during-trial, and post-trial phases. Since most charge adjudication is effected through plea bargaining, the ways in which plea procedures must be modified to conform to this moral assurance procedure, and thus honor the presumption of innocence, are also discussed. (shrink)

H. L. A. Hart, in his classic book Law, Liberty, and Morality, is unsuccessful in arguing that James Fitzjames Stephen’s observations about the role of vice in criminal sentencing have no relevance to a more general defense of legal moralism. He does, however, have a very important insight about the special significance of sexual liberty.

This review article of Stumer (The presumption of innocence: evidential and human rights perspectives. Hart Publishing, Oxford, 2010) explores the concept, normative foundations and institutional implications of the presumption of innocence in English law. Through critical engagement with Stumer’s methodological assumptions and normative arguments, it highlights the narrowness of common lawyers’ traditional conceptions of the presumption of innocence. Picking up the threads of previous work, it also contributes to on-going debates about the legitimacy of reverse onus clauses and their compatibility (...) with European human rights law and general principles of criminal jurisprudence. (shrink)

In his recent book Attempts, Gideon Yaffe suggests that attempts should be criminalized because of a principle he dubs the “Transfer Principle.” This principle holds that if a particular form of conduct is legitimately criminalized, then the attempt to engage in that form of conduct is also legitimately criminalized. Although Yaffe provides a powerful defense of the Transfer Principle, in this paper I argue that Yaffe’s argument for it ultimately does not succeed. In particular, I formulate two objections to Yaffe’s (...) argument for the Transfer Principle. First, I argue that a basic assumption about criminalization, on which Yaffe’s argument crucially depends, is incomplete, and Yaffe’s own attempt to supplement it undermines his argument for the Transfer Principle. Second, I argue that Yaffe’s argument does not properly account for the fact that those who merely attempt a crime and those who complete it might sometimes be responding to reasons in different ways. Accordingly, I conclude that Yaffe has not succeeded in establishing the truth of the Transfer Principle. (shrink)

Whereas liberals tend to emphasize harm as the decisive criterion for legitimizing criminalisation, moralists take a qualified notion of wrongfulness as sufficient even when no harm is at hand. This comment takes up Andreas von Hirsch’s “dual element approach” requiring both harm and wrongfulness as necessary conditions for criminalisation and argues that Joel Feinberg’s account of harming as violation of moral rights is perfectly compatible with it. Subsequently, two issues from the liberalism-moralism debate on criminalisation are examined: The difficulty of (...) how to determine wrongfulness beyond the scope of harming, and the so far disregarded question of whether the democratic legislator is free within the framework of constitution to criminalise whatever conduct he wants to prevent irrespective of philosophical constraints. (shrink)

In this paper I am specifically concerned with a normative assessment, from the perspective of a principled criminal law theory, of norms criminalizing illegal immigration. The overarching question I will dwell on is one specifically regarding the way of using criminal law which is implied in the enactment of such kinds of norms. My thesis will essentially be that it constitutes a veritable abuse of criminal law. In two senses at least: first, in the sense that by criminalizing illegal immigration (...) criminal law puts a ban on (certain categories of) persons, rather than on their actions/omissions, in a way in which a principled criminal law should not do; and—second—in the sense that the criminalization of illegal immigrants represents a perversion of the criminal law, being a case in which criminal norms are (unjustifiably) used as means to attain extrapenal aims. (shrink)

The presumption of innocence has often been understood as a doctrine that can be explained primarily by instrumental concerns relating to accurate fact-finding in the criminal trial and that has few if any implications outside the trial itself. In this paper, I argue, in contrast, that in a liberal legal order everyone has a right to be presumed innocent simply in virtue of being a person. Every person has a right not to be subjected to criminal punishment unless and until (...) he or she has done something that is criminally wrong. Since disagreements about allegations of criminal wrongdoing are inevitable, the liberal legal order requires a process for determining whether wrongdoing has occurred. In order to preserve the right not to be punished without wrongdoing, the accused person must be presumed innocent throughout this process. The presumption of innocence is therefore as much a basic human right as, for example, the right to bodily integrity or the right to freedom of expression. Specifications of and limitations on the right should therefore be justified not primarily in terms of their instrumental effectiveness in fact-finding or crime control but in terms of the role of the criminal process in a liberal legal order. I consider some implications of this view of the presumption of innocence for the pre-trial process and for substantive criminal law. I argue that the presumption of innocence, understood as a basic human right, should condition the entire pre-trial process; it has, however, minimal implications for the definition of offences. (shrink)

The article analyses the components of the presumption of innocence and tries to clarify some of the conceptual and logical difficulties surrounding the notion of ‘innocence’ and the structure of legal presumptions. It is argued that all conceivable literal interpretations of the maxim make little or no sense, and that the presumptions form is, as such, devoid of original content: presumptions do not explain nor justify anything but are auxiliary norms which refer to the legal consequences spelled out in other (...) norms. Therefore, the presumption of innocence can be used to express any kind of requirement and standard for the criminal process and the treatment of suspect citizens only in a tautological, albeit rhetorically forceful, way. This instrumental use of the presumption of innocence is theoretically without merit but can be practically beneficial as long as there is no developed system of fundamental rights and protections of individual freedoms in a given legal order. Finally, a functional understanding of the presumption of innocence is proposed which gives it an original, though limited field of application as a guarantee of the procedure itself, in particular of the openness of the outcome. (shrink)

The reform of offenders is often said to be one of the morally legitimate aims of punishment. After briefly surveying the history of reformist thinking I examine the ‘quasi-reform’ theories, as I call them, of H. Morris, J. Hampton and A. Duff. I explain how they conceive of reform, and what role they take it to have in the criminal justice system. I then focus critically on one feature of their conception of reform, namely, the claim that a reformed offender (...) will obey the relevant laws for moral reasons. I argue on consequentialist grounds that this requirement is objectionable. Consequentialism has always accepted reform as one legitimate goal of punishment, but it will not accept the narrowly moral conception of it that we find in the quasi-reform theorists. I situate my criticism within criminal law theory, but I also consider the claim in moral theory that acting from moral motives has intrinsic value. (shrink)

The paper’s central focus is the ‘duty’ theory of punishment developed by Victor Tadros in The Ends of Harm. In evaluating the ‘duty’ theory we might ask two broad closely related questions: whether in its own terms the ‘duty’ theory provides a justification of the imposition of hard treatment or suffering on an offender; and whether the ‘duty’ theory can provide a justification of punishment. This paper is principally concerned with the second question, which stems from a significant difference between (...) Tadros’s ‘duty view’ of punishment, as opposed to more familiar theories that seek to justify punishment as essentially the imposition of a penalty for (purported) wrongdoing. In addressing this question I highlight this particular difference as problematic for Tadros’s ‘duty’ theory. The issues concern Tadros’s conception of punishment and the central features of his ‘duty view’: the claim that punishment of some offenders can be justified as the (enforced) fulfilment of a duty of protection that they owe principally to those whom they have wrongfully harmed. (shrink)

By what right, or under whose authority, do you try me? This is a common challenge raised by defendants standing trial in front of international criminal courts or tribunals. The challenge comes from the fact that traditionally criminal law is justified as a response of the state to wrongdoing that has been identified by the state as a crime. Nevertheless, since the early 1990s we have seen the development of international criminal tribunals that have the authority to judge certain crimes. (...) This article examines the moral foundation for the authority of international tribunals, arguing that it can be grounded on delegation of powers from the states with primary jurisdiction. The first part of the article examines whether there is any problem, as a matter of principle, in founding the courts’ jurisdictional authority on delegation of powers. It will argue that contrary to David Luban’s view, there is no inherent problem with states delegating their power to punish to other states or to international tribunals. Nevertheless, in making such a decision the ability of the court to provide fair process—a necessary requirement for the court’s ability to issue authoritative decisions—should be taken into account. The second part of the article takes the ICC as a case study and examines whether its jurisdiction can be grounded on delegation of powers. It will be shown that the court’s jurisdiction can indeed be founded on both direct and indirect delegation of jurisdiction from states with primary jurisdiction. This conclusion suggests that other international tribunals created by either multilateral treaties or by Security Council decisions may also be founded on similar grounds. (shrink)