Online research in philosophy

David McCarthy has recently suggested that our compensation and liability practices may be interpreted as reflecting a fundamental norm to hold people liable for imposing risk of harm on others. Independently, closely related ideas have been criticised by Stephen R. Perry and Arthur Ripstein as incompatible with central features of negligence law. We aim to show that these objections are unsuccessful against McCarthy’s Risk–liability theory, and that such an approach is a promising means both for understanding the moral basis of liability for negligence and for reasoning about possible reforms of the institution of negligence law.

pt. 1. Philosophy and law -- Direct and oblique intention and malice aforethought -- Intention and mens rea in murder -- Duress per minas as a defence to crime -- The expert in court -- pt. 2. Philosophy and war -- Counterforce and countervalue -- Better dead than Red -- The logic and ethics of nuclear deterrence -- Risk, recklessness, and extravagance -- Epilogue -- Enemies of academic freedom.

In chapter 6 of Attempts , Gideon Yaffe defends the thesis that it is “possible to attempt crimes of negligence” ( 2010 , p. 173). I am persuaded that he is right about this, provided that “attempt crimes of negligence” is read as (potentially misleading) shorthand for “attempt to bring it about that we commit crimes of negligence.” But I find certain parts of his defense unpersuasive. My discussion of those parts of his argument motivates the following thesis: Not only can one attempt to bring it about that one commits a crime of negligence, but the attempt can be successful as well.

'Criminal lawyers focus on the traditional sphere of ‘real crime’ - roughly equating to those offences requiring proof of mens rea or fault - while treating regulatory offences of strict liability, often enforced by specialist agencies rather than the public police, as a marginal and, perhaps, embarrassing exception to the general methods and principles of criminal law.’ (Lacey 2004: 144).

Commentators seemingly agree about what negligence is—and how it is contrasted from recklessness. They also appear to concur about whether particular examples (both real and hypothetical) portray negligence. I am less confident about each of these matters. I explore the distinction between recklessness and negligence by examining a type of case that has generated a good deal of critical discussion: those in which a defendant forgets that he has created a substantial and unjustifiable risk of harm. Even in this limited kind of example, no single perspective on blame and liability proves to be defensible. Nonetheless, a discussion of this type of case is helpful because it enables us to appreciate the difficulties in understanding the nature of negligence and the ensuing uncertainty about whether penal liability for negligence is ever warranted.

How are we to understand criminal law reform? The idea seems simple—the criminal law on the books is wrong: it should be changed. But 'wrong’ how? By what norms 'wrong’? As soon as one tries to answer those questions, the issue becomes more complex. One kind of answer is that the criminal law is substantively wrong: that is, we assume valid norms of background political morality, and we argue that doctrinally the criminal law on the books does not embody those norms. Another kind of answer is that the criminal law as it stands presupposes certain empirical facts, and yet those facts do not hold. Traditionally, criminal law reform has been informed by both these answers. Analytical theorists examine doctrine for its conceptual structure, and social scientists examine the actual workings of the criminal justice system. This tidy picture is, however, challenged by social constructivist accounts of the criminal law. They challenge the stability and conceptual purity of doctrine, and they challenge the objectivity of social science. On the basis of these challenges, they undermine the ambitions of traditional criminal law reform, and argue that the only reforms to the criminal law that matter are politicized ones—that criminal law reform is pointless unless it serves the interests of the marginalized and the dispossessed. It seems undeniable that in some sense our perceptions of crime in our society are indeed moulded by social forces, and that crime does not exist independently of the social structures and processes that help to define and control it. But why should those insights have the implications for our understanding of criminal law reform that they are alleged to have? How could it follow from those insights that criminal law reform either becomes radicalized or valueless? The aim of this paper is to show that what can legitimately be taken from the emphasis on the social constructedness of crime does not require wholesale abandonment of the traditional picture of criminal law reform, even though it may require some modifications of that picture.

The exculpatory rhetorical power of the term “honest belief” continues to invite reliance on the bare credibility of belief in consent to determine culpability in sexual assault. In law, however, only a comprehensive analysis of mens rea, including an examination of the material facts and circumstances of which the accused was aware, demonstrates whether a “belief” in consent was or was not reckless or wilfully blind. An accused's “honest belief” routinely begs this question, leading to a truncated analysis of criminal responsibility, and error. The problem illustrates how easily old rhetoric perpetuates assumptions that no longer have a place in Canadian law.

What is to be made before the law of the "poet-warrior" activity of the fugitive Bosnian Serb leader Radovan Karadzic and the "poetic-military complex" of Serbian religious-ultranationalism where poets are far from gentle folk, but rather part of a "self-romanticizing macho fantasist" aesthetic and way of life? This Note suggests that the Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY) can use Karadzic's texts and affectations to warrior poetry in the pretrial brief and in admitted evidence, if and when Karadzic ultimately appears for trial. The violent nationalism of radio broadcasts, political journals, speeches, interviews, and manifestos have been fair game for the Office of the Prosecutor to make their cases in the last decade in both the Yugoslavia and Rwanda Tribunals. Why should poetry, perhaps the most powerful maker of myth and in the Yugoslavia context, a great mover of dangerous men and women, be any different in the eyes of international law? This Note suggests in particular that the materials at least have evidentiary value in the mens rea determination for genocide, the most significant crime Karadzic has been indicted for and the offense that has been branded the "ultimate crime." Part I sets out the highly flexible rules of evidence admissibility as well as the current evidentiary standards for genocide at the Tribunal. Part I also considers the window of opportunity afforded by ICTY Rule 93 which allows for the introduction of "character" evidence that proves a "consistent pattern of conduct relevant to serious violations of international law." Part II chronicles Karadzic's poet warrior activity and the broad contours of his "poetic-military complex." Part III illustrates how the poet warrior activity fits into a mens rea determination for genocide and the Rule 93 character evidence rule. The Conclusion considers some ways the admission of Karadzic's poet-warrior activity would change international law at the ad hoc Tribunals and possibly their permanent successor court, the International Criminal Court.