David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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Criminal Law and Philosophy 7 (2):255-284 (2013)
In this article, I ask whether the state, as opposed to its individual members, can intelligibly and legitimately be criminalized, with a focus on the possibility of its domestic criminalization. I proceed by identifying what I take to be the core objections to such criminalization, and then investigate ways in which they can be challenged. First, I address the claim that the state is not a kind of entity that can intelligibly perpetrate domestic criminal wrongs. I argue against it by building upon an account of the modern state as a moral agent proper, capable of both culpable moral and legal wrongdoing. I then consider objections to the intelligibility and legitimacy of subjecting states to domestic criminal processes, which primarily find their source in the assumption that such subjection would necessarily involve the state prosecuting, judging, and punishing itself. I argue that whether this (questionable) assumption is sound or not, it does not create the kinds of unsolvable quandaries its exponents think it does. I then move on to reject the distinct, yet related, objection that, at least in aspiring liberal jurisdictions, treating the state as a criminal objectionably involves extending to it various substantive and procedural guarantees that, given its nature and raison d’être, it should not have. Finally, I discuss three central objections to punishing the state. First, that organizations like states do not have the phenomenal consciousness required to suffer punishment. Second, that the constant possibility of dispersion of state punishment amongst individual members stands in the way of its justification. Lastly, that whatever justification there may be for making things harder for the state in response to its culpable wrongdoing, such treatment need not be understood as punishment. While partially conceding the strength of these objections, I strive to loosen their grip in ways that show that justified punishment of the state, meaningfully understood as such, remains a distinct possibility. I conclude by contrasting supposed alternatives to the criminalization of states, and by contending that my analysis leaves us with enough to keep the possibility of state criminalization on the table as a justifiable response to state wrongdoing
|Keywords||State Criminalization Irreducible corporate responsibility Criminal process and protections Authority Justification of corporate state punishment|
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References found in this work BETA
Christopher Bennett (2008). The Apology Ritual: A Philosophical Theory of Punishment. Cambridge University Press.
Benjamin L. Berger (2012). Mental Disorder and the Instability of Blame in Criminal Law. In François Tanguay-Renaud & James Stribopoulos (eds.), Rethinking Criminal Law Theory: New Canadian Perspectives in the Philosophy of Domestic, Transnational, and International Criminal Law. Hart Publishing.
John Cottingham & R. A. Duff (1987). Trials and Punishments. Philosophical Quarterly 37 (149):448.
R. Dagger (2011). Republicanism and the Foundations of Criminal Law. In Antony Duff & Stuart P. Green (eds.), Philosophical Foundations of Criminal Law. Oxford University Press. 44--66.
Avihay Dorfman & Alon Harel (2013). The Case Against Privatization. Philosophy and Public Affairs 41 (1):67-102.
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