Year:

Forthcoming articles
  1.  37
    Christopher Bennett (forthcoming). Penal Disenfranchisement. Criminal Law and Philosophy:1-15.
    This paper considers the justifiability of removing the right to vote from those convicted of crimes. Firstly, I consider the claim that the removal of the right to vote from prisoners (or serious offenders) is necessary as a practical matter to protect the democratic process from those who have shown themselves to be untrustworthy. Secondly, I look at the claim that offenders have broken the social contract and forfeited rights to participate in making law. And thirdly, I look at the (...)
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  2.  13
    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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  3.  2
    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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  4. 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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  5.  28
    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.  26
    Matthew Lister (forthcoming). Review of Corvino and Gallagher, Debating Same-Sex Marriage. [REVIEW] Criminal Law and Philosophy.
    With the recent U.S. Supreme Court cases finding the Defense of Marriage Act unconstitutional and removing impediments to same-sex marriage in California,as well as a number of recent successes in special elections and with legislators inthe U.S. and other countries, we might wonder whether there is still need for a book debating same-sex marriage. Is not the tide of history inevitably movingtowards marriage equality? While that position seems tempting, it is too quick.
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  7.  6
    Thomas Søbirk Petersen (forthcoming). On the Offense Principle: Some New Challenges. Criminal Law and Philosophy.
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  8.  2
    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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  9.  16
    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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  10.  31
    Mark Tunick (forthcoming). Should We Aim for a Unified and Coherent Theory of Punishment? Criminal Law and Philosophy:1-18.
    Thom Brooks criticizes utilitarian and retributive theories of punishment but argues that utilitarian and retributive goals can be incorporated into a coherent and unified theory of punitive restoration, according to which punishment is a means of reintegrating criminals into society and restoring rights. I point to some difficulties with Brooks’ criticisms of retributive and utilitarian theories, and argue that his theory of punitive restoration is not unified or coherent. I argue further that a theory attempting to capture the complex (...)
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  11.  13
    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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  12.  5
    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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  13.  7
    Matt Matravers (forthcoming). Symposium on Andrew Simester and Andreas von Hirsch, Crimes, Harms, and Wrongs: On the Principles of Criminalisation. Criminal Law and Philosophy:1-3.
    Andrew Simester and Andreas von Hirsch’s Crimes, Harms, and Wrongs: On the Principles of Criminalisation (Simester and von Hirsch 2011) is an important contribution to the philosophical debate over the nature and ethical limits of criminalisation. As they note in their reply in this symposium, one of the novel aspects of their account is that they do not advance one “unified, grand theory”. Rather, they analyse each ground of criminal prohibition—wrongfulness, harm-based, offense, and paternalistic prohibitions aimed at preventing self-harm—so (...)
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  14.  2
    S. Armstrong (forthcoming). Philosophy as Capacity. Criminal Law and Philosophy.
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  15. S. Armstrong (forthcoming). Review Of: R. Lippke's, The Ethics of Plea Bargaining. [REVIEW] Criminal Law and Philosophy.
     
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  16.  15
    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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  17.  12
    Thom Brooks (forthcoming). In Defence of Punishment and the Unified Theory of Punishment: A Reply. Criminal Law and Philosophy:1-10.
    My book, Punishment, has three aims: to provide the most comprehensive and updated examination of the philosophy of punishment available, to advance a new theory—the unified theory of punishment—as a compelling alternative to available theories and to consider the relation of theory to practice. In his recent review article, Mark Tunick raises several concerns with my analysis. I address each of these concerns and argue they rest largely on misinterpretations which I restate and clarify here.
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  18.  3
    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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  19.  20
    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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  20.  5
    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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  21.  3
    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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  22.  12
    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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  23.  14
    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 (...)
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  24.  3
    Julia Driver (forthcoming). Private Blame. Criminal Law and Philosophy:1-6.
    This paper explores a problem for Michael McKenna’s conversation model of moral responsibility that views blame as characteristically part of a conversational exchange. The problem for this model on which this paper focuses is the problem of private blame. Sometimes when we blame we do so without any intention to engage in a communicative exchange. It is argued that McKenna’s model cannot adequately account for private blame.
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  25.  7
    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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  26.  2
    Albert W. Dzur (forthcoming). The Priority of Participation: A Friendly Response to Professor Gargarella. Criminal Law and Philosophy:1-5.
    A response to Roberto Gargarella’s review of Punishment, Participatory Democracy, and the Jury, by Albert W. Dzur.
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  27.  2
    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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  28.  12
    Peter A. French (forthcoming). Complicity: That Moral Monster, Troubling Matters. Criminal Law and Philosophy:1-15.
    In the criminal law of many jurisdictions complicity, though not itself a substantive crime but a way of committing a crime, is a doctrine that determines when one person is legally liable for a criminal offense that was committed by another person, typically by being an accomplice. That doctrine has a number of troubling moral implications with respect to responsibility, particularly when complicity is employed as a devise to capture one agent as morally accountable for the actions of another agent (...)
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  29.  12
    V. C. Geeraets (forthcoming). Fictions of Restorative Justice, Vincent Geeraets. Criminal Law and Philosophy:1-17.
    In this paper, I argue that scholars such as John Braithwaite and Lode Walgrave rely on fictions when presenting their utopian vision of restorative justice. Three claims in particular are shown to be fictitious. Proponents of restorative justice maintain, first, that the offender and the victim voluntarily attend the restorative conference. Second, that the restorative conference enables the offender and the victim to take on active responsibility. Third, that the reparatory tasks on which the parties agree should not be understood (...)
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  30.  25
    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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  31.  4
    Alon Harel (forthcoming). R. A. Duff, Lindsay Farmer, S. E. Marshall, Massimo Renzo and Victor Tadros (Eds): The Constitution of the Criminal Law. Criminal Law and Philosophy:1-8.
    This book is a collection consisting of an introduction and nine essays that explore foundational aspects of criminal law. As the introduction makes clear, the book is eclectic and the essays can be classified under three main headings. The first group of essays explores the political constitution of criminal law as part of the institutional structure of the state. The second group of essays investigates the question of the authority of criminal law and its potential to create reasons for action. (...)
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  32.  1
    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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  33.  9
    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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  34.  14
    Tatjana Hörnle (forthcoming). Theories of Criminalization. Criminal Law and Philosophy:1-14.
    In this article, I comment on Simester and von Hirsch’s theory of criminalization and discuss general principles of criminalization. After some brief comments on punishment theories and the role of moral wrongdoing, I examine main lines of contemporary criminalization theories which tend to focus on the issues of harm, offense, paternalism and side-constraints. One of the points of disagreement with Simester and von Hirsch concerns the role of the harm principle. I rely on a straightforward normative concept of “rights of (...)
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  35.  10
    Peter Jones (forthcoming). Accommodating Religion and Shifting Burdens. Criminal Law and Philosophy:1-22.
    With some qualifications, this article endorses Brian Leiter’s argument that religious accommodation should not shift burdens from believers to non-believers. It argues that religious believers should take responsibility for their beliefs and for meeting the demands of their beliefs. It then examines the implications of that argument for British law on indirect discrimination (disparate impact) as it relates to religion or belief: burden-shifting from believers to employers and providers of goods and services should be deemed acceptable only insofar as the (...)
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  36.  19
    John Kleinig (forthcoming). The Paternalistic Principle. Criminal Law and Philosophy:1-13.
    In this paper, I critique one aspect of Simester and von Hirsch’s, Crimes, Harms, and Wrongs—their recognition of harm and offence principles, but failure to construct a paternalistic principle, despite their willingness to countenance some small measure of criminal paternalism. Construction of such a principle would have clarified the problems of as well as the limits to criminalising paternalism.
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  37.  10
    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.  1
    Joanna Kyriakakis (forthcoming). Rene Provost and Payam Akhavan: Confronting Genocide. Criminal Law and Philosophy:1-8.
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  39.  7
    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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  40.  23
    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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  41.  11
    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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  42.  19
    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 (...)
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  43.  6
    Kasper Lippert-Rasmussen (forthcoming). Desert, Bell Motion, and Fairness. Criminal Law and Philosophy:1-17.
    In this critical review, I address two themes from Shelly Kagan’s path-breaking The Geometry of Desert. First I explain the so-called “bell motion” of desert mountains—a notion reflecting that, ceteris paribus, as people get more virtuous it becomes more important not to give them too little of whatever they deserve than not to give them too much. Having argued that Kagan’s defense of it is unsatisfactory, I offer two objections to the existence of the bell motion. Second, I take up (...)
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  44.  11
    Ian Loader (forthcoming). In Search of Civic Policing: Recasting the 'Peelian' Principles. Criminal Law and Philosophy:1-14.
    For over a century the so-called ‘Peelian’ principles have been central to the self-understanding of Anglo-American policing. But these principles are the product of modern state-building and speak only partially to the challenges of urban policing today. In fact, they stand in the way of clear thinking and better practice. In this paper, I argue that these principles ought to be radically recast and put to work in new ways. The argument proceeds as follows. First, I recover and outline the (...)
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  45.  4
    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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  46.  5
    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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  47.  4
    Michael McKenna (forthcoming). Quality of Will, Private Blame and Conversation: Reply to Driver, Shoemaker, and Vargas. Criminal Law and Philosophy:1-21.
    In this paper, I defend my book Conversation and Responsibility in response to three critics: Julia Driver, David Shoemaker, and Manuel Vargas. Driver raises questions about my account of private blame. Shoemaker finds problems with my account of quality of will. And Vargas questions the conversational nature of my account.
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  48.  10
    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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  49.  3
    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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  50.  12
    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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  51.  4
    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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  52.  9
    Thomas Søbirk Petersen (forthcoming). No Offense! On the Offense Principle and Some New Challenges. Criminal Law and Philosophy:1-11.
    A central aim within criminal justice ethics is to give a plausible justification concerning which type of acts ought to be criminalized by the state. One of the principles of criminalization which has been presented and critically discussed in the philosophical literature is the Offense Principle. The primary aim of this paper is to argue that unless a rather special and implausible objective list theory of well-being is accepted, the Offense Principle should be subsumed in the Harm Principle.
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  53.  6
    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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  54.  29
    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 (...)
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  55.  11
    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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  56.  5
    Steven R. Ratner (forthcoming). Complicity and Compromise in the Law of Nations. Criminal Law and Philosophy:1-15.
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  57.  3
    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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  58.  14
    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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  59.  11
    Frederick Schauer (forthcoming). On the Utility of Religious Toleration. Criminal Law and Philosophy:1-14.
    Brian Leiter’s Why Tolerate Religion? valuably clarifies the issues involved in granting religion-specific accommodations (and thus exceptions or exemptions) to laws and policies of general application. His arguments are careful, rigorous, and fair, and in rejecting the deontological arguments for religion-specific accommodations he seems to me largely correct. But when he turns to arguing against the utilitarian case for such accommodations, he employs a seemingly non-standard sense of utilitarianism in which demands of principled consistency constrain what would otherwise be utilitarian (...)
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  60.  4
    A. P. Simester & Andreas von Hirsch (forthcoming). On the Legitimate Objectives of Criminalisation. Criminal Law and Philosophy:1-13.
    We discuss and respond to the contributions of Tatjana Hörnle, John Kleinig, and John Stanton-Ife, and clarify some aspects of the arguments made in Crimes, Harms, and Wrongs.
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  61.  5
    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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  62.  12
    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 (...)
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  63.  1
    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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  64.  14
    John Stanton-Ife (forthcoming). What is the Harm Principle For? Criminal Law and Philosophy:1-25.
    In their excellent monograph, Crimes, Harms and Wrongs, Andrew Simester and Andreas von Hirsch argue for an account of legitimate criminalisation based on wrongfulness, the Harm Principle and the Offence Principle, while they reject an independent anti-paternalism principle. To put it at its simplest my aim in the present paper is to examine the relationship between ‘the harms’ and ‘the wrongs’ of the authors’ title. I begin by comparing the authors’ version of the Harm and Offence Principle with some other (...)
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  65.  2
    Findlay Stark (forthcoming). Andrew Ashworth, Lucia Zedner and Patrick Tomlin (Eds): Prevention and the Limits of the Criminal Law. Criminal Law and Philosophy:1-6.
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  66.  11
    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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  67.  14
    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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  68.  4
    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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  69.  15
    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 (...)
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  70.  18
    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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  71.  2
    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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  72.  6
    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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  73.  36
    Gary Watson (forthcoming). Raz on Responsibility. Criminal Law and Philosophy:1-15.
    Standard treatments of responsibility have been preoccupied with issues of blame and punishment, and concerns about free will. In contrast, Raz is concerned with problems about responsibility that arise from the “puzzle of moral luck,” puzzles that lead to misguided skepticism about negligence. We are responsible not only for conduct that is successfully guided by what we take to be our reasons for action, but also for misexercises of our rational capacities that escape our rational control. To deny this is (...)
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  74.  12
    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 (...)
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  75.  8
    Gideon Yaffe (forthcoming). In Defense of Criminal Possession. Criminal Law and Philosophy:1-31.
    Criminal law casebooks and treatises frequently mention the possibility that criminal liability for possession is inconsistent with the Voluntary Act Requirement, which limits criminal liability to that which includes an act or an omission. This paper explains why criminal liability for possession is compatible with the Voluntary Act Requirement despite the fact that possession is a status. To make good on this claim, the paper (1) defends the Voluntary Act Requirement, (2) offers an account of the nature of omissions of (...)
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  76.  13
    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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  77.  16
    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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