David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Ezio Di Nucci
Jonathan Jenkins Ichikawa
Jack Alan Reynolds
Learn more about PhilPapers
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|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library|
References found in this work BETA
Christian List (2011). Group Agency: The Possibility, Design, and Status of Corporate Agents. Oxford University Press.
John Rawls (1999). The Law of Peoples. Harvard University Press.
Immanuel Kant (1996). The Metaphysics of Morals. Cambridge University Press.
Arthur Ripstein (2009). Force and Freedom: Kant's Legal and Political Philosophy. Harvard University Press.
John Locke (1988). Two Treatises of Government. Cambridge University Press.
Citations of this work BETA
No citations found.
Similar books and articles
Kimberley Brownlee (2008). Justifying Punishment: A Response to Douglas Husak. [REVIEW] Criminal Law and Philosophy 2 (2):123-129.
François Tanguay-Renaud (forthcoming). Puzzling About State Excuses as an Instance of Group Excuses. In R. A. Duff, L. Farmer, S. Marshall & V. Tadros (eds.), The Constitution of Criminal Law. Oxford University Press
Michael Philips (1986). The Justification of Punishment and the Justification of Political Authority. Law and Philosophy 5 (3):393 - 416.
Nathan Hanna (2012). It's Only Natural: Legal Punishment and the Natural Right to Punish. Social Theory and Practice 38 (4):598-616.
Corey Brettschneider (2007). The Rights of the Guilty. Political Theory 35 (2):175-199.
Michael Cholbi (2010). Compulsory Victim Restitution is Punishment: A Reply to Boonin. Public Reason 2 (1):85-93.
Jules Holroyd (2010). Punishment and Justice. Social Theory and Practice 36 (1):78-111.
Ken Levy (2010). Killing, Letting Die, and the Case for Mildly Punishing Bad Samaritanism. Georgia Law Review 44:607-695.
Dieter Reicher, Why Popular Culture Helps to Understand Better State-Building Processes - a Comparative Focus on Images of Criminal Violence and State Violence in Traditional Song-Lyrics.
Charles A. Hart (1940). Philosophy of the State: The Individual; Civil Rights; the Democratic State; the Totalitarian State; the Corporative State; Church and State. [Washington, D.C.,G. Dawe].
R. A. Duff (2010). Blame, Moral Standing and the Legitimacy of the Criminal Trial. Ratio 23 (2):123-140.
Reidar Maliks (2013). Kant, the State, and Revolution. Kantian Review 18 (1):29-47.
Adam Omar Hosein (2014). Doing, Allowing, and the State. Law and Philosophy 33 (2):235-264.
François Tanguay-Renaud (2013). Victor's Justice: The Next Best Moral Theory of Criminal Punishment? [REVIEW] Law and Philosophy 32 (1):129-157.
Added to index2012-08-08
Total downloads50 ( #95,409 of 1,941,042 )
Recent downloads (6 months)10 ( #94,642 of 1,941,042 )
How can I increase my downloads?