Online research in philosophy

A standard assumption in the economics of law enforcement is that the probability of a violator being punished depends only on the resources devoted to enforcement. However, it is often true that the productivity of enforcement resources decreases with the number of violators. In this paper, an individual who violates the law provides a positive externality for other offenders because the probability of being punished decreases with the number of individuals violating the law. This externality explains the existence of correlation between individuals' decisions to break a law. The model evaluates the implications when determining the socially optimal enforcement expenditure, focusing specifically on the case of neighborhood crime. In particular, using a parametrized functional form, I show that neighborhood externalities will enhance or impede enforcement, depending on the crime rate.

In this paper I will argue that, international criminal law constitutes a valid legal system. There is skepticism over the authority of international law; some claim that it is not a genuine legal system, and does not command legal obligation. I will adopt a particular legal positivist position, known as moral attitude positivism, and apply this to an analysis of international criminal law. I will argue that the criteria necessary for a legal system on the positivist account are present in the international system of criminal law. Specifically, I will argue that a ‘rule of recognition’ can be drawn from a variation of the legal norm pacta sunt servanda, and this serves to validate the system as a whole. I conclude that the skeptic is wrong, and that international criminal law should be regarded as a valid legal system, commanding genuine legal authority.

On normative order -- On institutional order-- Law and the constitutional state -- A problem : rules or habits? -- On persons -- Wrongs and duties -- Legal positions and relations : rights and obligations -- Legal relations and things : property -- Legal powers and validity -- Powers and public law : law and politics -- Constraints on power : fundamental rights -- Criminal law and civil society : law and morality -- Private law and civil society : law and economy -- Positive law and moral autonomy -- On law and justice -- Law and values : reflections on method.

Abstract: The corporate scandals of the past few years have brought renewed attention to the problem of curtailing dishonest and fraudulent business practices, a problem on which strategic, ethical, and law enforcement interests should be aligned. Unfortunately, several features of federal criminal law and federal law enforcement policy have driven a wedge into this alignment, forcing managers to choose between their ethical obligations and their obligation to obey the law or aid law enforcement. In this article, I examine the nature and implications of the growing divergence between managers’ ethical and legal obligations. After describing the traditional approach to business ethics analysis, I identify the features of federal criminal law and law enforcement policy that are responsible for the divergence and show how they are undermining the efficacy of the traditional approach. I illustrate this effect with the issue of workplace confidentiality. I then argue that the traditional approach must be reformed to give explicit recognition to the legal dimension of normative analysis, and demonstrate how such a reformed approach would function by applying it to three illustrative issues—organizational justice, privacy, and ethical auditing—and supplying a case study—KPMG’s allegedly abusive tax shelters.

This contribution aims to explain how European Criminal Law can be understood as constitutive of European identity. Instead of starting from European identity as a given, it provides a philosophical analysis of the construction of self-identity in relation to criminal law and legal tradition. The argument will be that the self-identity of those that share jurisdiction depends on and nourishes the legal tradition they adhere to and develop, while criminal jurisdiction is of crucial importance in this process of mutual constitution. This analysis will be complemented with a discussion of the integration of the first and the third pillar as aimed for by the Constitutional Treaty (TE), which would bring criminal law under majority rule and European democratic control. Attention will be paid to two ground breaking judgements of the European Court of Justice (ECJ) that seem to boil down to the fact that the Court actually manages to achieve some of the objectives of the CT even if this is not in force. This gives rise to a discussion of how the CT (and related judgements of the ECJ) may transform European criminal law in the Union to EU criminal law of the Union, thus producing an identity of the Union next to the identities prevalent in the Union. The contribution concludes with some normative questions about the kind of European identity we should aim to establish, given the fact that such identity will arise with further integration of criminal law into the first pillar.

The Grammar of Criminal Law is a 3-volume work that addresses the field of international and comparative criminal law, with its primary focus on the issues of international concern, ranging from genocide, to domestic efforts to combat terrorism, to torture, and to other international crimes. The first volume is devoted to foundational issues. The Grammar of Criminal Law is unique in its systematic emphasis on the relationship between language and legal theory; there is no comparable comparative study of legal language. Written in the spirit of Fletcher's classic Rethinking Criminal Law, this work is essential reading in the field of international and comparative 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.

In this Commentary, Professor Sandra Guerra Thompson urges her colleagues who teach and write on the subjects of criminal law and procedure to explore the growing intersection of immigration law and criminal law. Her Commentary addresses the plight of the millions of long-term residents of the United States who do not have citizenship, legal residency or a visa. She discusses the implications of changes in law enforcement policy regarding persons found within national borders - as opposed to those found in transit while crossing the border. Current policies signal a change in the role of state and local police officers and their relations with immigrant communities. The integration of federal immigration enforcement into local criminal law enforcement also dramatically affects a defense attorney's responsibilities in representing immigrants as even a minor crime can have dramatic collateral consequences. The use of state criminal justice processing systems to ferret out defendants without legal residency also alters the nature of a prosecutor's plea bargaining position in those cases, not to mention the sentencing authority of a trial judge. Finally, the use of criminal prosecution for federal crimes related to immigration violations - a blunt tool previously used judiciously for real criminals - is now increasingly used in cases involving individuals attempting to return to their families after deportation or who purchase phony documents for use in obtaining employment. The breakup of families due to the detention, deportation, and possible prosecution of family members also creates grave humanitarian issues. The many new legal and policy challenges our country will face as we move in the direction of greater immigration enforcement present a rich array of new topics for teaching and scholarship.

This paper addresses three doctrinal phenomena of which it finds evidence in English law: the quiet extension of the criminal law so as to criminalise that which is by no means an obvious offence; the creation of offences the goal of which is not to guide potential offenders away from crime; and the existence of offending behaviour which is not itself thought to justify arrest or prosecution. While such phenomena have already been criticised by other criminal law theorists, this paper offers a critique to which little attention has yet been paid. It argues that the existence of these phenomena has been concealed from public view: that the organs of state have encouraged the belief that they are no part of English law. The paper then argues that it is high time the state came clean. The state owes its people answers for the imposition of the criminal law: it must account for the creation and enforcement of any given criminal offence. When the state misleads its people about the criminal law’s scope, goals and enforcement, it refuses to provide those people with the answers they are owed.

This paper examines the legitimacy of pro-active law enforcement techniques, i.e. the use of deception to produce the performance of a criminal act in circumstances where it can be observed by law enforcement officials. It argues that law enforcement officials should only be allowed to create the intent to commit a crime in individuals who they have probable cause to suppose are already engaged or intending to engage in criminal activity of a similar nature.