In this article I ask how moral relativism applies to the analysis of responsibility for mass crime. The focus is on the critical reading of two influential relativist attempts to offer a theoretically consistent response to the challenges imposed by extreme criminal practices. First, I explore Gilbert Harman’s analytical effort to conceptualize the reach of moral discourse. According to Harman, mass crime creates a contextually specific relationship to which moral judgments do not apply any more. Second, I analyze (...) the inability thesis, which claims that the agents of mass crime are not able to distinguish between right and wrong. Richard Arneson, Michael Zimmerman and Geoffrey Scarre do not deny the moral wrongness of crime. However, having introduced the claim of authenticity as a specific feature of the inability thesis, they maintain that killers are not responsible. I argue that these positions do not hold. The relativist failure to properly conceptualize responsibility for mass crime follows from the mistaken view of moral autonomy, which then leads to the erroneous explanation of the establishment, authority and justification of moral judgments. (shrink)
The article reviews recent developments in England in the law of necessity as a defence to crime and calls for its further extension. It argues that the defence of necessity presents the criminal law with difficult questions of competing values and the ordering of harms. English law has taken a nuanced position on the respective roles of the courts and the legislature in the ordering of harms, although the development of the law has been pragmatic rather than coherently theorised. (...) The law has granted necessity some scope as an exculpatory principle in the law of general defences, but it has also respected the primacy of the legislature as the legitimate arbiter of many of the competitions of value that necessity throws up. The recognition of necessity has not been in the form of a single unified defence of that name. Rather it has taken the form of a number of defences, based on a principle of necessity, but with different nomenclature and different rationales. This approach to necessity is defended as right in terms of principle and policy. Any further development of necessity as a general defence should be restricted to two contexts, namely those of emergencies, and of conflicts of duty, where a danger of death or serious injury is present. (shrink)
This collection of original essays by leading philosophers probes the philosophical aspects of rape in all of its manifestations: act, crime, practice, and institution. Among the issues examined are the nature of rape; the wrongfulness and harmfulness of rape; the relation of rape to racism, sexism, classism, and other forms of oppression; and the legitimacy of various rape-law doctrines. Each contributor advances a novel argument and seeks to disentangle the conceptual, evaluative, and empirical issues that arise in connection with (...) the crime. This essential reference work is among the first philosophical anthologies devoted exclusively to the subject of rape--as complex and interesting intellectually as it is pervasive and disturbing socially. (shrink)
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.
There is a divide within political and legal theory concerning the justification of hate-crime legislation in liberal states. Opponents of Hate-Crime Legislation have recently argued that enhanced punishment for hate-motivated crimes cannot be justified within political liberal states. More specifically, Heidi Hurd argues that criminal sanction which target character dispositions unfairly target individuals for characteristics not readily under their control. She further argues that a âcharacterâ based approach in criminal law is necessarily illiberal and violates the stateâs commitment (...) to political neutrality. In the current paper, I attempt to show the difficulties and absurdity that follows from Hurdâs characterization of hate- rimes. I aim to show that punishment for undesirable character traits is consistent with western conceptions of criminal law. Upon doing so, I then go on to construct a positive argument for the justifiability of punishing for character traits as well as for the enhanced punishment associated with hate-motivated crimes. (shrink)
In this paper I am concerned with a problem for communicative theories of punishment. On such theories, punishment is justified at least in part as the authoritative censure or condemnation of crime. But is this compatible with a broadly liberal political outlook? For while liberalism is generally thought to take only a very limited interest in its citizens’ attitudes (seeing moral opinion as a matter of legitimate debate), the idea of state denunciation of crime seems precisely to be (...) focused on the attitudes expressed in action. In this paper I analyse the elements of the communicative theory of punishment, assessing the extent to which they can be considered anti-liberal. I argue that, understood in a certain way, the communicative theory, though in some sense communitarian, is compatible with at least one central and attractive non-perfectionist strand in liberalism. Key Words: communicative theory • Devlin • Duff • Hegel • von Hirsch • punishment. (shrink)
In a sex selective abortion, a woman aborts a fetus simply on account of the fetus’ sex. Her motivation or underlying reason for doing so may very well be sexist. She could be disposed to thinking that a female child is inferior to a male one. In a hate crime, an individual commits a crime on account of a victim’s sex, race, sexual orientation or the like. The individual may be sexist or racist in picking his victim. He (...) or she could be disposed to thinking that one race or sex is inferior to another. I argue that while a prohibition on sex selective abortions is anomalous in a liberal, criminal legal framework, hate crime legislation may not be. The former but not the latter constitutes a thought crime. I define a thought crime as one where an agent’s motivation is not just relevant but sufficient to take an act from the domain of the non-punishable to the domain of the punishable. Ignoring a woman’s sexist motivation in procuring an abortion suddenly renders her act of abortion legal. On the other hand, discounting an agent’s bias in committing a hate motivated assault or murder does not transform the act from a punishable one to a non-punishable one. Assaulting or murdering is already a crime. (shrink)
By far the most plausible explanation of data on violent crime in the United States is that its high handgun ownership rate is a major causal factor. The only realistic way to significantly reduce violent crime in this country is an outright ban on private ownership of handguns. While such a ban would undeniably restrict one particular freedom, it would violate no rights. In particular, the unquestioned right to self-defense does not entail a right to own handguns, because (...) the evidence indicates that the widespread belief in handguns’ defensive efficacy is mistaken, especially when we confine our attention to defensive handgun use that is actually morally permissible. A handgun ban will never eradicate the weapons from this country, but it can substantially reduce the ownership rate and, as a result, substantially reduce violent crime. Although political realities may make a handgun ban unattainable in the United States at present, the very act of advancing cogent arguments for the most defensible position will make the goal of handgun prohibition more and more achievable. (shrink)
Criminal law doctrine fails to provide an adequate solution for imputing responsibility to organized crime leaders for the offenses committed by their subordinates. This undesirable state of affairs is made possible because criminal organizations adopt complex organizational structures that leave their superiors beyond the reach of the law. These structures are characterized by features such as the isolation of the leadership from junior ranks, decentralized management, and mechanisms encouraging initiative from below. They are found in criminal organizations such as (...) the American Mafia, the Japanese Yakuza, and even outlaw motorcycle gangs. The paper offers a doctrine that may transcend this shortcoming. Referred to as “leaders’ liability,” this doctrine will be assessed and appraised through a comparison with competing theories such as accomplice liability, Organisationsherrschaft , and conspiracy. (shrink)
It is generally assumed that we are justified in punishing criminals because they have committed a morally wrongful act. Determining when criminal liability should be imposed calls for a moral assessment of the conduct in question, with criminal liability tracking as closely as possible the contours of morality. Versions of this view are frequently argued for in philosophical accounts of crime and punishment, and seem to be presumed by lawyers and policy makers working in the criminal justice system. -/- (...) Challenging such assumptions, this book considers the dominant justifications of punishment and subjects them to a piercing moral critique. It argues that none overcome the objection that people who are convicted of a serious crime and sent to prison have their basic human rights violated. The institution of criminal punishment is shown to be a regrettable necessity not deserving of the moral enthusiasm it enjoys among many politicians and the popular press. From a moral point of view, punishment is entitled at best to grudging toleration. -/- In the course of developing the argument, the book introduces the principal issues of criminal law theory with the aim of presenting a morally enlightened perspective on crimes and why we punish them. Enforcement of the law by police, prosecutors, and courts is a matter of concern for political morality, and the principal practices of the criminal justice system are subjected to moral scrutiny. The book offers an engaging, provocative introduction to thinking about the philosophy of crime and punishment, challenging students and other readers to think about whether we are justified in punishing wrongdoers. (shrink)
In this essay, I critically evaluate the new South African state's approach to crime prevention in light of the Kantian principle of respect of persons. I show that the five most common explanations of why the state must fight crime are unconvincing; provide a novel, respect-based account of why justice requires the state to prevent crime; and specify which crime fighting techniques the state must adopt in order to meet this requirement. Reviewing the South African state's (...) criminal justice policies and practices since 1994, I also argue that it has failed to fulfill its obligation to fight crime, which failure is neither excused nor justified. -/- . (shrink)
There is no question Arthur Ripstein’s Force and Freedom is an engaging and powerful book which will inform legal philosophy, particularly Kantian theories, for years to come. The text explores with care Kant’s legal and political philosophy, distinguishing it from his better known moral theory. Nor is Ripstein’s book simply a recounting of Kant’s legal and political theory. Ripstein develops Kant’s views in his own unique vision illustrating fresh ways of viewing the entire Kantian project. But the same strength and (...) coherence which ties the book to Kant’s important values of independence blinds the work to our shared moral ties grounded in other political values. Ripstein’s thoughts on punishment are novel in that he embeds criminal law, both in its retributivist and consequentialist facets, into Kant’s overarching political philosophy to show how criminal law can be seen as one aspect of the supremacy of public law. But a criminal law solely focused on the preservation of freedom takes little notice of the ways criminal law need expand its view to account for how a polity can restore the victim of a crime back to civic equality, reincorporate offenders after they have been punished and cannot leave past offenders isolated and likely to reoffend, resulting in the rotating door prison system and communities of innocents who remain preyed upon by career criminals. Lastly, a political theory that does not prize our civic bonds will ignore the startling balkanization of our criminal punishment practices, where policing, arresting and imprisonment become tools of racial and social oppression. In illustrating the benefits in viewing criminal law as a coherent part of Kant’s political theory of freedom, Ripstein also highlights what is absent. It then becomes clear that though Kant presents one important facet of punishment, only a republican political theory can meet the most pressing moral demands of punishment by reminding us that criminal law must be used to preserve and strengthen civic society. (shrink)
The intuition holding that an organized crime leader should be punished more severely than a subordinate who directly commits an offence is commonly reflected in legal literature. However, positing a direct relationship between the severity of punishment and the level of seniority within an organizational hierarchy represents a departure from a more general idea found in much of the substantive criminal law writings: that the severity of punishment increases the closer the proximity to the physical commission of the offence. (...) This paper presents an analysis of the said intuition and attempts to ascertain its roots. Rejecting both retribution and deterrence theory as valid explanations, it will be inferred that the imposition of harsher punishment on organized crime leaders is properly based on the multiplicity of offences for which they are responsible, and not the nature of their involvement in any specific offence. (shrink)
In 1990, the comptroller of the Catholic Diocese of Buffalo was charged with the embezzlement of eight million dollars of money belonging to the Diocese, He was subsequently convicted and served several years in state prison. Using this case as a starting point, this paper looks at several examples of white-collar crime and religious institutions. Should justice or mercy be the operative virtue in dealing with such criminals?
Societies and communities are understood as orders (or laws) of persons, i.e., types of arrangements of human relations that are in principle conflict-free or equipped to solve conflicts among their members. As not all human relations fall into member-member patterns, there is need for the concept of a natural order (law) of persons, regardless of their memberships. The main theme is the comparison of the three orders, with special focus on how they deal with crime, punishment and law enforcement.
This pilot study examines how a number of American and Japanese journalists make the tough calls regarding an escalating social problem: whether to identify juveniles who have been charged with serious capital crimes. Divergent societal and journalistic values of the two countries are explored via a survey of journalists from Honolulu and Hiroshima. Newsroom policies and practices are described regarding general and specific cases of juvenile crime. In general, Japanese journalists are far more likely than U.S. journalists to withhold (...) names. Tables and additional background information are found at jmme.org. (shrink)
This essay proposes an approach to understanding changes in political responses to crime in England and Wales over the last third of the twentieth century and developments in criminological knowledge over the same period. To explore the association between these in some empirical detail, we argue, would provide a historical?sociological understanding that is currently lacking, notwithstanding Garland's significant intervention in The Culture of Control. We take issue with some aspects of Garland's account, on both methodological and substantive grounds, and (...) delineate certain distinctions between his ?history of the present? and the historically situated hermeneutics that we favour. The latter, we suggest, can be more attentive to particular political and intellectual struggles that have had a formative bearing on the current field and, as such, offer new perspectives on the position of crime and punishment in contemporary political culture. (shrink)
The shift from a welfarist to a retributivist perspective on crime, which is one of the themes of David Garland?s book, has brought with it a renewed emphasis on the victims of crime and their rights. This shift in emphasis, I suggest, raises questions about the way we think of the relationship between individual citizens and between citizens and the state. Different political theories will produce different accounts of this relationship and hence different ways of characterising the status (...) and role of victims in the criminal process. In this paper then I sketch a roughly communitarian view of the citizen relationship as a context for an account of the status of victims. Thus, I argue, we need to consider not just the expectations that victims rightly have that they have rights which should to be recognised in the criminal process but also their duties as participants. Duties which require them to bear witness in calling offenders to account. This gives victims an active role in the criminal process but one that may come at a price since it might require victims to be subjected to greater scrutiny in the process of a criminal trial than they might find bearable. (shrink)
Abstract Before the establishment in the early 1800s of France's Sûreté Nationale and England's Scotland Yard, the detection of crimes was generally regarded as supernatural work, but the rise of modern science allowed mere mortals to systematize and categorize events?and thus to solve crimes. Reducing the amount of crime, however, did not reduce the fear of crime, which actually grew in the late-nineteenth century as the result of globalization and media sensationalism. Literary detectives offered an imaginary cure for (...) an imaginary disease. Sherlock Holmes, the most famous literary detective, retained many of the characteristics that earlier ages had attributed to superhuman ?detectives?; a wondrous and a social being, he nonetheless was able to reassure an anxious public that even the most heinous crimes could be solved. His ability to calm the fears of the globalizing Victorian era was an early version of what later became a proliferation of imaginary characters serving similar public functions. (shrink)
This paper presents an effort to induce a Bayesian belief network (BBN) from crime data, namely the national crime victimization survey (NCVS). This BBN defines a joint probability distribution over a set of variables that were employed to record a set of crime incidents, with particular focus on characteristics of the victim. The goals are to generate a BBN to capture how characteristics of crime incidents are related to one another, and to make this information available (...) to domain specialists. The novelty associated with the study reported in this paper lies in the use of a Bayesian network to represent a complex data set to non-experts in a way that facilitates automated analysis. Validation of the BBN’s ability to approximate the joint probability distribution over the set of variables entailed in the NCVS data set is accomplished through a variety of sources including mathematical techniques and human experts for appropriate triangulation. Validation results indicate that the BBN induced from the NCVS data set is a good joint probability model for the set of attributes in the domain, and accordingly can serve as an effective query tool. (shrink)
This essay identifies areas of analysis which David Garland neglects in The Culture of Control. The essential argument being that greater attention to the influence of feminism and the treatment of female offenders and victims would have enriched his interpretation of the culture of control. The essay suggests that the treatment of women in criminal justice matters exemplifies the apparently dualistic and polarised penal policies that Garland describes so well. The recent huge increases in the number of women sentenced to (...) imprisonment, in particular, are inexplicable, and point to a critical paradox in criminal justice system thinking. The essay also includes with some reflections on the future of crime control in relation to women. One important question is whether or not the future of crime control is inevitably or necessarily gendered. Thus the essay touches on the gender neutral versus gender specific and equality versus difference debates and their irreconcilable elements, as well as on possible ways of dealing with them, and concludes with some thoughts on the potential of renewed interest in the concept of citizenship and justice. (shrink)
Healthcare trends, stressors, and workplace violence -- Patient privacy and exploitation -- Abuse and assault -- Fraud and theft -- Suspicious death and homicide -- Investigations, sanctions, and discipline -- Prevention strategies and the future of healthcare crime.
This is the first book to take a comprehensive look at white collar criminal offenses from the perspective of moral and legal theory. Focussing on the way in which key white collar crimes such as fraud, perjury, false statements, obstruction of justice, bribery, extortion, blackmail, insider trading, tax evasion, and regulatory and intellectual property offenses are shaped and informed by a range of familiar, but nevertheless powerful, moral norms.
The U.S. Catholic Bishops (2000) have endorsed a model of criminal justice that is restorative rather than retributive. Some interpreters of Catholic tradition defend retribution as a necessary feature of responding to crime (e.g., John Finnis). I argue in this paper that this difference is substantive, not merely linguistic. The essential question is what elements of past Catholic thinking about criminal justice are normative for today. I argue that there are strong moral reasons,consistent with both Catholic tradition and larger (...) principles of social justice, to endorse the bishops’ statement on criminal justice reform, and with it a restorativeapproach to crime. (shrink)
The perfect crime -- The spectre of the will -- The radical illusion -- Trompe-l'œl genesis -- The automatic writing of the world -- The horizon of disappearance -- The countdown -- The material illusion -- The secret vestiges of perfection -- The height of reality -- The irony of technology -- Machinic snobbery -- Objects in this mirror -- The Babel syndrome -- Radical thought -- The other side of the crime -- The world without women -- (...) The surgical removal of otherness -- The "laying-off" of desire -- The new victim order -- Indifference and hatred -- The revenge of the mirror people. (shrink)
This paper outlines a multi-agent architecture for regulated information exchange of crime investigation data between police forces. Interactions between police officers about information exchange are analysed as negotiation dialogues with embedded persuasion dialogues. An architecture is then proposed consisting of two agents, a requesting agent and a responding agent, and a communication language and protocol with which these agents can interact to promote optimal information exchange while respecting the law. Finally, dialogue policies are defined for the individual agents, specifying (...) their behaviour within a negotiation. Essentially, when deciding to accept or reject an offer or to make a counteroffer, an agent first determines whether it is obligatory or permitted to perform the actions specified in the offer. If permitted but not obligatory, the agent next determines whether it is in his interest to accept the offer. (shrink)
When should someone who may have intentionally or knowingly committed criminal wrongdoing be excused? Excusing Crime examines what excusing conditions are, and why familiar excuses, such as duress, are thought to fulfil those conditions. -/- The 'classical' view of excuses sees them as rational defects (such as mistake) in the motive force behind an action, but contrasts them with 'denials of responsibility', such as insanity, where the rational defect in that motive force is attributable to a mental defect in (...) the agent him- or herself. This classical view of excuses has a long heritage, and is enshrined in different forms in many of the world's criminal codes, both liberal and non-liberal; however, in this book, Jeremy Horder contends that it is now time to move beyond it. -/- Horder develops a 'liberal' account of excuses, arguing that the 'classical' distinction between rational defects and 'denials of responsibility' is too sharp, and also that the classical view of excuses is too narrow. He contends that it can be right to treat claims as excusatory even if they rely on a combination of elements of rational defect in the motive force behind the action, even if that defect is in part attributable to a mental deficiency in the agent him or herself ('diminished capacity'). Further, he argues that there can be a sound case for excuse even when people can give full rational assent to their actions, such as when they could not reasonably have been expected to do more than what they did to avoid committing wrongdoing ('due diligence'), or, more rarely, when their conscience understandably left them with no moral freedom to do other than commit the wrong ('demands-of-conscience'). (shrink)
This book examines a range of criminal activities conducted in different European contexts. Offences committed by individuals and groups endowed with different resources and status are examined. Each chapter contains an implicit rejection of generalizations and attention is paid to variations and differences. Rather than searching for a unified theory of crime, the author highlights the interpretive oscillations, which always occur when we are faced with criminal behaviour. In other words, each time we subscribe to one cause of (...) class='Hi'>crime we may realize that also the opposite cause possesses some reasonable validity. The originality of this book consists of the `causality of contraries' running through the chapters, whereby a tentative aetiology identified in one context finds its complete overturning in anther. The author regards the `causality of contraries' as a crucial aspect of the anti-criminological tradition to which he claims affiliation. These `essays in anti-criminology' deal with crimes of both the powerless and the powerful, and seek to demonstrate that both the deficiency and the abundance of legitimate opportunities may lead to crime. -/- In the first part of the book a conventional criminal activity par excellence is examined, namely activity related to the economy of illicit drugs. In this economy the author notes a shift from a Fordist to a Toyota model of criminal activity, a shift determined by the expansion of demand and the growing variety of supply of illicit drugs. The second part of the book addresses specific cases of elite criminality, including illicit trafficking in arms and human beings. The chapters devoted to the analysis of political and administrative corruption in Italy, France, and Britain provide yet other examples of how illegal practices may be imputed to one cause in one context and its opposite in another. Two Intermezzos complete the book, posing more general questions, respectively, around the very concept of illicit `drugs' and the evasive character of illicit economic behaviour. (shrink)
In this paper, I will approach the problem of normalization within the context of crime and punishment in Nietzsche and Foucault. In modern theory and law, a linear, causal relationship has been established between crime and punishment with no regard to the socio-cultural context in which crimes and punishments take place. It was not until the nineteenth century that the problems of this relationship were exposed most notably by Dostoyevsky in fiction and later by Nietzsche in his theoretical (...) writings (the essays) and in his introspective reflections (the aphorisms). Although, according to Foucault, the reformists of penal institutions around the turn to the nineteenth century expanded the domain of crime and punishment to other areas and social contexts, they too were not radical enough tounderstand the problem of crime and punishment in-depth and were not, therefore, capable of exposing them as a syndrome that is deeply rooted in the Occidental world-interpretation, its values and institutions. What I would like to show in this paper is how the syndrome of crime and punishment in the West is intricately tied to, what Nietzsche calls, the morality of good and evil (the slave morality, its absolute truth, and its normalizing trend and power) and how Foucault transplants the Nietzschean critical project to its institutional context. Despite agreements and continuities between the two thinkers, no doubt their differences toowill come to surface in this study. (shrink)
Martin Wrights original ground-breaking and influential analysis of the defects of the adversarial system of justice, plus the arguments in favour of a more ...
George Fletcher emerges in his writing, as in his life, as a colorful and highly individual figure. The last thing one expects of him is the surrender of individual identity to an anonymous submersion in the collective. Yet doctrinally he is a collectivist. In his recent writings, he has been seeking to collectivize just about everything: action, responsibility, guilt, liability, self-defense, criminal punishment, international criminal law, action in war, war crimes, and so on.
ON DECEMBER 10, 1991 Charles Shonubi, a Nigerian citizen but a resident of the USA, was arrested at John F. Kennedy International Airport for the importation of heroin into the United States.1 Shonubi's modus operandi was ``balloon swallowing.'' That is, heroin was mixed with another substance to form a paste and this paste was sealed in balloons which were then swallowed. The idea was that once the illegal substance was safely inside the USA, the smuggler would pass the balloons and (...) recover the heroin. On the date of his arrest, Shonubi was found to have swallowed 103 balloons containing a total of 427.4 grams of heroin. There was little doubt about Shonubi's guilt. In fact, there was considerable evidence that he had made at least seven prior heroin-smuggling trips to the USA (although he was not tried for these). In October 1992 Shonubi was convicted in a United States District Court for possessing and importing heroin. Although the conviction was only for crimes associated with Shonubi's arrest date of December 10, 1991, the sentencing judge, Jack B. Weinstein, also made a ®nding that Shonubi had indeed made seven prior drug-smuggling trips to the USA. The interesting part of this case was in the sentencing. According to the federal sentencing guidelines, the sentence in cases such as this should depend on the total quantity of heroin involved. This instruction was interpreted rather broadly.. (shrink)
The past decade has seen a rapid development and proliferation of sophisticated computer systems in organizations. Designers, however, have minimized the importance of security control systems, (except for those systems where data security and access control have obviously been of major importance). The result is an increasing recognition that computer systems security is often easily compromised.This research will provide the initial step in assessing ways in which attorneys retained to prosecute computer crimes and computer people who discover these violations can (...) work together to strengthen both our computer systems to thwart violators and the laws that are currently on the books that can be used to prosecute violators. (shrink)
Aquinas and the idea of law -- Aquinas on criminal culpability -- Crimes against the person -- Aquinas on sexual offenses -- Aquinas on property offenses -- Offenses involving judicial process -- Aquinas on offenses against public morality -- Law, justice, sentencing and punishment.
Recent years have seen mounting challenge to the model of the criminal trial on the grounds it is not cost-effective, not preventive, not necessary, not appropriate, or not effective. These challenges have led to changes in the scope of the criminal law, in criminal procedure, and in the nature and use of criminal trials. These changes include greater use of diversion, of fixed penalties, of summary trials, of hybrid civilâcriminal processes, of strict liability, of incentives to plead guilty, and of (...) preventive orders. The paper will assess the implications of these changes for the function of the criminal law, assessing the reasons behind them, and examining whether or not they are to be welcomed. Identifying the larger import of these changes draws attention to the changing relationship between state and citizen as well as changes in the nature of the state itself. These can in turn be attributed to a jostling among the different manifestations of the authoritarian state, the preventive state, and the regulatory state. These changes have profound normative implications for a liberal theory of the criminal law that require its re-articulation and its defence. A modest start may be to insist that where the conduct is criminal and the consequences are punitive the protections of criminal procedure and trial must be upheld. (shrink)
Recent research in moral psychology has attempted to characterize patterns of moral judgments of actions in terms of the causal and intentional properties of those actions. The present study directly compares the roles of consequence, causation, belief and desire in determining moral judgments. Judgments of the wrongness or permissibility of action were found to rely principally on the mental states of an agent, while judgments of blame and punishment are found to rely jointly on mental states and the causal connection (...) of an agent to a harmful consequence. Also, selectively for judgments of punishment and blame, people who attempt but fail to cause harm more are judged more leniently if the harm occurs by independent means than if the harm does not occur at all. An account of these phenomena is proposed that distinguishes two processes of moral judgment: one which begins with harmful consequences and seeks a causally responsible agent, and the other which begins with an action and analyzes the mental states responsible for that action. Ó 2008 Elsevier B.V. All rights reserved. (shrink)
The essence of the moral luck question is whether the responsibility of persons is determined only in light of actions that are within their control or also in light of factors, such as the consequences of their actions, which are beyond their control. Most people seem to have contrasting intuitions regarding this question. On the one hand, there is a common intuition that the responsibility of persons should be judged only in light of what is within their control. On the (...) other hand, there is a strong intuition that the consequences of actions sometimes affect the responsibility of agents even when these consequences depend on factors that are beyond their control. A parallel dilemma is present in the law. Legal rules, particularly criminal law rules and tort rules, often differentiate between agents in light of factors that are beyond their control, and in this sense involve legal luck. Of course, factors beyond the control of persons, including the consequences of their actions, can be significant, with respect to the evaluation of the responsibility of persons for instrumental or epistemic reasons. The question is thus only with respect to the independent significance of factors beyond the control of agents, and particularly the consequences of actions, to the evaluation of the (extent of the) responsibility of agents. Benjamin Zipursky offers an interesting argument in order to support the intuition in favor of moral and legal luck, particularly with regard to consequences, especially the rule according to which the punishment of completed offences is more severe than the punishment of attempts and the rule that tort liability applies only to actions that have caused harm. The aim of this Comment is to evaluate this argument. I will try to consider to what extent Zipursky's explanation merely reiterates the familiar intuition that the normative evaluation of the conduct of persons should be influenced by consequential luck, and to what extent it provides new insights that might appeal also to those who are more forcefully drawn to the contrasting intuition that we should judge people only in light of factors that are within their control. I argue that while Zipursky's suggestions might appeal to those who already share the intuition in favor of (consequential) moral and legal luck, they would not convince those who have doubts regarding moral and legal luck. (shrink)
In this paper I want to investigate further a claim made by Martha Nussbaum and Wayne Booth, amongst others, that good literature can be morally valuable, by applying it to a certain kind of genre fiction: the modern harboiled detective novel.
This work provides, for the first time, a unified account of the theory of action presupposed by both British and American criminal law and its underlying morality. It defends the view that human actions are volitionally caused body movements. This theory illuminates three major problems in drafting and implementing criminal law--what the voluntary act requirement does and should require, what complex descriptions of actions prohibited by criminal codes both do and should require, and when the two actions are the "same" (...) for purposes of assessing whether multiple prosecutions and multiple punishments are warranted. The book contributes to the development of a coherent theory of action in philosophy. It provides a grounding in three of the most basic elements of criminal liability for legislators, judges, and the lawyers who argue to them. (shrink)
What is to be “protected†is US power and the interests it represents, not the world, which vigorously opposed the conception. Within a few months, studies (...) class='Hi'>revealed that fear of the United States had reached remarkable heights, along with distrust of the political leadership. An international Gallup poll in December, barely noted in the US, found virtually no support for Washington’s announced plans for a war in Iraq carried out “unilaterally by America and its alliesâ€: in effect, the US-UK “coalition.â€. (shrink)
Incest is a crime in most societies. In the United States, incest is punishable in almost every state with sentences going as far as 20 and 30 years in prison, and even a life sentence. Yet the reasons traditionally proffered in justification of criminalization of incest—respecting religion and universal tradition; avoiding genetic abnormalities; protecting the family unit; preventing sexual abuse and sexual imposition; and precluding immorality—at a close examination, reveal their under- and over-inclusiveness, inconsistency or outright inadequacy. It appears (...) that the true reason behind the long history of the incest laws is the feeling of repulsion and disgust this tabooed practice tends to evoke in the majority of population. However, in the absence of wrongdoing, neither a historic taboo nor the sense of repulsion and disgust legitimizes criminalization of an act. (shrink)
This is a review of the challenging book in which Larry Alexander and Kimberly Ferzan propose sweeping revisions to the structure of substantive criminal law.
Fear of public disclosure that will add to the humiliation of rape or other sexual assault is real for victims. In discussing this issue, cases for concealment and for disclosure are examined and suggestions are made for determining whether to publish names of victims.
In “The Immorality of Punishment”, Michael Zimmerman attempts to show that punishment is morally unjustified and therefore wrong. In this response, I focus on two main questions. First, I examine whether Zimmerman’s empirical claims—concerning our inability to identify wrongdoers who satisfy conditions on blameworthiness and who might be reformed through punishment, and the comparative efficacy of punitive and non-punitive responses to crime—stand up to scrutiny. Second, I argue that his crucial argument from luck depends on claims about counterfactuals that (...) ought to be rejected. I conclude that though his arguments are powerful, they fall short of his ambitious aim of demonstrating that punishment is always seriously wrong. (shrink)
