Online research in philosophy

After an initial discussion (§i) of what a theory of criminal law might amount to, I sketch (§ii) the proper aims of a liberal, republican criminal law, and discuss (§§iii–iv) two central features of such a criminal law: that it deals with public wrongs, and provides for those who perpetrate such wrongs to be called to public account. §v explains why a liberal republic should maintain such a system of criminal law, and §vi tackles the issue of criminalization—of how we should determine the proper scope of the criminal law.

Anglo-American criminal law traditionally demands a criminal purpose for an attempt conviction, even when the crime attempted requires only foresight or recklessness. Some legal philosophers have defended this rule by appeal to an alleged difference in the moral character or intentional structure of intended versus non-intended harms. I argue that there are reasons to be skeptical of any such differences; and that even if conceded, it is only on the basis of an unworkable view of criminal responsibility that such a distinction would support a rule restricting attempts to criminal purpose. I defend instead the continuity thesis, according to which attempts are functionally continuous with endangerment offenses: both are legal efforts to regulate unreasonably dangerous conduct. The upshot of the continuity thesis is that there is little substantive difference between attempt and endangerment in principle, no matter how they are labeled in law.

I take it as obvious that attempts to justify the criminal law must be sensitive to matters of criminalization—to what conduct is proscribed or permitted. I discuss three additional matters that should be addressed in order to justify the criminal law. First, we must have a rough idea of what degree of deviation is tolerable between the set of criminal laws we ought to have and the set we really have. Second, we need information about how the criminal law at any given time and place is administered, since the law in action is bound to differ radically from the law on the books. Finally, we must have some basis for speculating what life would be like in the absence of a system of criminal justice—if the state ceased to impose punishments.

The basic idea of rule-utilitarianism is that right action should be defined in terms of what would be required by rules which would maximize either actual or expected utility if those rules gained general acceptance, or perhaps general compliance. Rule-utilitarians face a dilemma. They must characterize 'general acceptance' either as 100% acceptance, or as something less. On the first horn of the dilemma, rule-utilitarianism in vulnerable to the charge of utopianism; on the second, it is open to the charge of arbitrariness and lack of philosophical depth. I press this objection, and develop and defend an alternative version of rule-utilitarianism which can evade the dilemma. I call this new version 'variable-rate rule-utilitarianism'.

Economic concepts and methods are used to throw light on some aspects of common-sense ethics and the difference between it and Utilitarianism. (1) Very few exceptions are allowed to the rules of common-sense ethics, because of the cost of information required to justify an exception to Conscience and to other people. No such stringency characterizes Utilitarianism, an abstract system constructed by philosophers. (2) Rule Utilitarianism is neither consistent with common-sense ethics, nor does it maximize utility as has been claimed for it. The same is true of more recent variants of Utilitarianism. (3) Second best and first best are usually identical in common-sense ethics. They are often identical in Utilitarianism when a moral situation can be represented by a Prisoner's Dilemma. However, problems arise in permissive forms of Utilitarianism when it is not obvious that second best should be applied.

The basic idea of rule-utilitarianism is that right action should be defined in terms of what would be required by rules which would maximize either actual or expected utility if those rules gained general acceptance, or perhaps general compliance. Rule-utilitarians face a dilemma. They must characterize 'general acceptance' either as 100% acceptance, or as something less. On the first horn of the dilemma, rule-utilitarianism in vulnerable to the charge of utopianism; on the second, it is open to the charge of arbitrariness and lack of philosophical depth. I press this objection, and develop and defend an alternative version of rule-utilitarianism which can evade the dilemma. I call this new version 'variable-rate rule-utilitarianism'.

ch. 1. Conscience--the subjective norm of morality -- ch. 2. Conscience and law -- ch. 3. Relationship between conscience and law -- ch. 4. Holy Scipture on the nature of conscience -- ch. 5. Freedom and commitment of conscience -- ch. 6. The African and conscience with particular reference to the Igbos of Nigeria -- ch. 7. Igbo moral conscience in the light of cross-cultural education: Western civilisation and christianity.

The wrongness of rape -- Rationality and the rule of law in offences against the person -- Complicity and causality -- In defence of defences -- Justifications and reasons -- The gist of excuses -- Fletcher on offences and defences -- Provocation and pluralism -- The mark of responsibility -- The functions and justifications of criminal law and punishment -- Crime : in proportion and in perspective -- Reply to critics.