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.

I argue that fitting resentment tracks unacceptable ‘ecological’ imbalances in relative social strength between victims and perpetrators that arise from violations of legitimate moral expectations. It does not respond purely, or even primarily, to offenders’ attitudes, and its proper targets need not be fully developed moral agents. It characteristically involves a wish for the restoration of social equilibrium rather than a demand for moral recognition or good will. To illuminate these contentions, I focus on cases that I believe demonstrate a (...) corollary thesis, namely, that strength, broadly construed, is a necessary condition of resentment-worthiness. I argue that weakness can make resentment unfitting in two ways. First, weakness may prevent a wrongdoer from shifting the balance of social power. Second, a weak wrongdoer may do social damage but be so lowly that resentment, which would represent him as excessively strong, would be inapt. Finally, I consider how accepting the ecological view might affect our theorizing about moral responsibility and the ethics of blame. (shrink)

The legal institute of whistleblowing as a tool for detecting wrong-doing, especially in large corporations, and at the same time as an institute of whistleblower protection is a matter of modern law and its wider use has been registered only in recent decades. However, some aspects of whistleblowing, in particular the protection of the public interest and the possibility for weaker parties to report offences to an official, can already be found in older law in many different countries. Moravian provincial (...) law was the main law on the territory of the Margraviate of Moravia, although there were other legal circuits (with regard to the personality of the law) paying quite a lot of attention to the issue of reporting offences to an official authority. This issue is connected not only with the police regulations for the protection of the country, but is also strongly reflected in the set of provisions concerning the serfs. (shrink)

This chapter contains section titled: Harm, Offence, and Profound Offence Examples of Offensive Cultural Appropriation The Problem and the Key to its Solution Social Value and Offensive Art Freedom of Expression The Sacred and the Offensive Time and Place Restrictions Toleration of Offensive Art Reasonable and Unreasonable Offence.

In his 1963 essay ‘Supererogation and Offence: A Conceptual Scheme for Ethics,’ Roderick Chisholm describes a category of human acts which he calls ‘offences’:A system of moral concepts which provides a place for what is good but not obligatory, should also provide a place for what is bad but not forbidden. For if there is such a thing as “non-obligatory well-doing” then it is plausible to suppose that there is also such a thing as “permissive ill-doing.” There is no (...) term in moral literature, so far as I know, which has been used to designate just this latter class of actions; I shall refer to them as “offences.”Some recognize the possibility of acts, commonly called acts of supererogation, which are morally good or praiseworthy but not obligatory to perform. In this passage, as well as in a later article co-authored with Ernest Sosa, Chisholm calls attention to the possibility of acts which are morally bad or blameworthy to perform, but whose performance is nevertheless not forbidden. (shrink)

The article provides an outline of the basic principles and conditions of criminalisation of interferences with others’ property rights in the context of a specific context: a liberal, social democratic state, the legitimacy of which depends primarily on its impartiality between moral doctrines and the fair distribution of liberties and resources. I begin by giving a brief outline of the conditions of political legitimacy, the place of property and the conditions of criminalisation in such a state. With that framework in (...) place, I argue that interferences with others’ property rights should be viewed as violations of political duties stemming from institutions of distribution. I then discuss three implications of this view: the bearing of social injustice on the criminal law treatment of acts of distributive injustice; the expansion of criminalisation over the violation of distribution-related duties, which are considered criminally irrelevant under moral conceptions of criminalisation; and, finally, the normative significance of the modus operandi. (shrink)

I present the first systematic account in the literature of a Husserlian response to Natorp’s critique of Husserl’s account of the pre-givenness of both the absolute stream of lived-experience and its essencesEssences to reflectionReflections. My response is presented within the broader context of what I argue is Heidegger’s misappropriation of Natorp’s critique of the phenomenological limits of reflectionReflections in Husserl’s transcendental phenomenologyTranscendental phenomenology and the misguided French attempt to address Heidegger’s critique by introducing the dialectical notion of “pre-reflectivePre-reflective” consciousness to (...) phenomenology. My Husserlian response shows that Husserl’s account of reflectionReflections in Ideas I is able to rebut Natorp’s critical claims that transcendental phenomenologyTranscendental phenomenology cannot access the streaming of the stream of lived-experience without “stilling” its flow and that a gap in Husserl’s account of the transformation of the natural phenomenonPhenomenon of reflectionReflections into transcendental reflectionReflections provides justification for Natorp’s criticism of the ambiguity of Husserl’s account in Ideas I of the givennessGivennesses of the essenceEssences of lived-experience investigated by transcendental phenomenologyTranscendental phenomenology. (shrink)

Two years ago the Constitutional Court invalidated provisions in the Sexual Offences Act which outlawed sexual conduct between adolescents. Parliament was ordered to fix the relevant provisions and to decriminalise consensual sexual activity between adolescents. In July 2015 the Amendment Act came into operation with the aim of revising the current Sexual Offences Act in line with the Constitutional Court judgment. This article evaluates some of the changes contained in the Amendment Act to determine its alignment with the ruling of (...) the Constitutional Court. It also considers how the changes will impact the reporting obligations of health providers. (shrink)

In recent multicultural conflicts, such as the Danish Muhammad cartoons affair and the religious controversy about having a gay pride parade in the holy city of Jerusalem, religious minority members have argued that certain acts should be prohibited because they offend their religious and cultural feelings. According to the orthodox view in current liberal thought, however, there should be no legal protection from mere insult to feelings and sensibilities, as related to sacred religious and cultural values as they may be. (...) In this article I challenge this view. I argue that certain offensive acts ought to be legally regulated and propose a normative principle for their regulation, which is consistent with neutral liberalism. I argue that some claims of offence to feelings boil down to a struggle for equality in the public sphere between competing cultural identities. I conceptualize such claims as claims that purport to protect people’s right in the integrity of their cultural identity. I suggest the vulnerable cultural identity principle, according to which the more vulnerable the social and civic status of one’s cultural identity is, the stronger her claim is from integrity of cultural identity. I argue that this principle avoids the problems of legal moralism and the subjectivity in evaluating painful feelings. (shrink)

This book aims to rehabilitate taking offence. In an era of public criticism of those deemed too easily offended, it is easy to overlook the significance and social value of this emotion. Offence, the book argues, is better understood as a way to defend one’s standing than as a mere expression of hurt feelings. The book defends the significance of offence as one way to resist everyday social inequalities: those details of interactions that, together, pattern social hierarchies. (...) As a result, the defence of offence is of that taken at apparently trivial and small-scale details of social interactions, and so the very form that its opponents find most objectionable. Within societies marred by hierarchies of unequal social standing, and when taken by those who face systematic attributions of lower social standing, an inclination to take offence is a civic virtue. First, this book offers an analysis of offence that depicts a distinctive emotion ripe for moral reappraisal. To take offence resists an affront to one’s social standing and is one way to negotiate the social norms and practices that structure social interactions, often in socially unequal ways. Second, the book defends the significance of our social standing, the cumulative importance of apparently small details of interactions, and offence as an act of insubordination against a social hierarchy. Third, it turns to the limits on when taking offence is justified, addressing jokes, unintentional affronts, disagreement over what counts as offensive, and what we should think of offence that is taken online. (shrink)

In the Principles of the Penal Code, Jeremy Bentham described offences that he labelled presumed or evidentiary. The conduct penalized under such offences is punished not because it is intrinsically wrong, but because it probabilistically indicates the presence of an intrinsic wrong. Bentham was sceptical of the need to create offences, but grudgingly accepted their value in light of deficiencies in procedure and the judiciary. These days the scepticism is even greater, with courts and commentators in the United States, Canada, (...) the United Kingdom and elsewhere believing that such offences deny a defendant the right to establish that he did not engage in the conduct that the presumed offence probabilistically but not necessarily indicates. On closer analysis, however, such scepticism appears unjustified. Almost all offences, and indeed almost all legal rules, are premised on a probabilistic relationship between the behaviour the rule encompasses and the behaviour that is the rule-maker's real concern. Presumed offences may make this relationship especially obvious, but it is a relationship that exists whenever the law operates by the use of rules. (shrink)

This is a study of possession offences, with the focus on those intended to penalise the risk of a serious harm. Offences of this kind are examined in the light of basic doctrines of the criminal law, and in the light of the proper limits of endangerment offences. They are found wanting in both respects, and are also found to pose particular sentencing problems. The conclusion is that many risk-based possession offences are unfair, save those that require proof of a (...) further intent or those aimed at a failure properly to safeguard a dangerous object. (shrink)

Regulatory offences are a complex phenomenon, presenting problematic aspects both at the level of criminalisation and at the level of enforcement. The literature abounds in works that study the phenomenon. There is, however, an aspect that has remained largely unexplored. It concerns the relationship between the regulatory framework within which the crime occurs and the procedural safeguards that defendants normally enjoy at trial or at the pre-trial stage: defendants tried for regulatory offences are often denied safeguards that are generally considered (...) as important constituents of trial fairness. Relying on a new conceptualisation of regulatory offences, this paper advances a theory that justifies these exceptional rulings. (shrink)

First paragraph: The awesome range of Heike Jung’s work—over different aspects of criminal law, different jurisdictions and traditions, different disciplines and languages—makes life both easier and harder for contributors to his Festschrift: easier, because one can choose almost any criminal law topic and be confident that it will connect to his work; harder (for those with the British vices of monolingualism and intellectual parochialism), since one’s paper will display the linguistic, jurisdictional or intellectual limitations that Heike Jung’s work so impressively (...) transcends. In an attempt to overcome some of those limitations, I will discuss a topic that concerns criminal trials and the scope of the criminal law, through the distinction between crimes (Straftaten) and ‘regulatory offences’ (Ordnungswidrigkeiten) which is more often formally drawn in Germany and other continental European systems than in English law. (shrink)

First paragraph: The awesome range of Heike Jung’s work—over different aspects of criminal law, different jurisdictions and traditions, different disciplines and languages—makes life both easier and harder for contributors to his Festschrift: easier, because one can choose almost any criminal law topic and be confident that it will connect to his work; harder (for those with the British vices of monolingualism and intellectual parochialism), since one’s paper will display the linguistic, jurisdictional or intellectual limitations that Heike Jung’s work so impressively (...) transcends. In an attempt to overcome some of those limitations, I will discuss a topic that concerns criminal trials and the scope of the criminal law, through the distinction between crimes (Straftaten) and ‘regulatory offences’ (Ordnungswidrigkeiten) which is more often formally drawn in Germany and other continental European systems than in English law. (shrink)

Assume that a person who is suspected of either murdering X or raping Y credibly and voluntarily confesses to have committed ‘a terrible crime’ but immediately after this utterance decides to remain silent. The remaining available evidence cannot prove beyond reasonable doubt the exact offence which he committed. Should such an accused be acquitted of both offences and evade the law or should a way be found to allow a conviction, although no specific offence can be proven beyond (...) reasonable doubt? Harel and Porat suggest that such an accused should be convicted of an unspecific offence. This paper reaches entirely different conclusions, according to which the prevailing insistence of most Criminal justice systems on offence specificity is justified. It is argued that offence specificity stems from the cognitive psychological difficulties associated with simulating the event in question if the accused is convicted of an unspecific offence. The reason is that fact-finders are unable to simulate the details of an unspecific offence while retaining a confidence level sufficiently high to satisfy the standard of ‘beyond reasonable doubt’. The fact-finder faces a choice between a proven offence which is difficult to simulate and a group of unproven offences which are easy to simulate. These difficulties also give rise to a more solid expressivist justification for offence specificity than that conceded by Harel and Porat. Unspecific offences undermine the efficacy of condemnation because the message that corresponding convictions would broadcast to members of the public would be either blurred and ineffective or based on scenarios none of which was proven beyond reasonable doubt. This paper therefore offers two independent justifications for the prevailing insistence on offence specificity, both of which are based on the cognitive psychological difficulties of simulation, as found by the fact-finder and the public respectively. (shrink)

In 1963 Roderick Chisholm proposed a category of acts called “offences” to capture what he called acts of “permissive ill-doing.” Chisholm’s proposal has proven to be controversial. Here I propose that some progress can be made in validating acts of offence by focusing upon moral dilemmas. Given the problems which have been alleged to beset moral dilemmas, this may initially seem like a puzzling strategy. However, I will call attention to a type of moral dilemma unlike what is standardly (...) discussed in the literature and attempt to show that those who acknowledge that such dilemmas are possible are likewise obliged to acknowledge that acts of offence are possible. My suggestion, then, is that, since the former are plausible to acknowledge, so are the latter. (shrink)

In H.M. Advocate v. Grimmond1 the judge in a Scottish High Court trial refused permission for expert psychological evidence to be admitted on behalf of the Crown in a prosecution involving sexual offences against two children. The Crown had sought to lead an expert witness to explain to the jury about patterns of disclosure in child sexual abuse cases. The case was remarkable, not so much for the strict application of the longstanding rule in R. v. Turner that constrains the (...) use in the courtroom of expert evidence from the behavioural sciences, but for the way in which the arguments presented by the Crown in Grimmond resonate with enduring feminist critiques regarding the treatment of women in rape trials. The theoretical issues raised by the decision include the quest for context to counter rigid evidential frameworks, and the choice of a child sexual abuse case as the medium for challenging the boundaries of the admissibility of expert evidence in the courtroom. The ramifications of Grimmond are tangible as legislation intended to benefit children and women has already been enacted by the Scottish Parliament to ameliorate the effects of the decision. This article suggests that while this legislation should be given a cautious welcome it remains to be seen whether the heralded benefits will actually materialise. (shrink)

Research carried out in Lithuania shows that the system of expert bodies has already prepared for change. Such opinion is supported by the Lithuanian Government working group meeting concerning the improvement of experts’ performance. In our opinion, Lithuania should ensure strategic, integrated multi-level forensic analysis, rational and potential use of material by not only dealing with a variety of forensic issues, but also by the interpretation of criminal investigation and prevention on scientific, methodological, didactic and organisational levels. The article presents (...) the concept of research that is accomplishing in scientific project ‘Special scientific knowledge of the investigation of crime: the concept and its realisation mechanism” and first intermediary results of the research. The purpose of the project is to formulate the scientific concept and realisation of special knowledge in the investigation of crimes and administrative offences in the direction of legal system reform. (shrink)

With a focus on the Common Law jurisdiction of England and Wales and the Civil Law jurisdiction of Vietnam, this article provides an analytical framework to address the uncertain jurisprudence of minor offence processes. The article’s approach is to seek an account of crime and criminal process that is most suitable for practice and most compatible with the broad notion of ‘criminal charge’ under international human rights instruments. It is argued that minor offences should be considered forms of less (...) serious crimes that are subject to short periods of imprisonment or non-custodial punishments and dealt with by summary procedures. The fragmentation of minor offences demands an approach to procedural pragmatism and procedural proportionality; that is, the procedure for each type of offence should be proportionate to the severity of punishment and fair as a whole. (shrink)

Since at least as far back as the infamous Derek Bentley case of the 1950s in which an unarmed 19-year-old was convicted and executed for murder based on his alleged uttering of the words _let him have it_ to his gun-wielding accomplice, the issue of incitement has been positioned firmly as an object of interest for forensic linguists. An example of a language crime—i.e. an unlawful speech act (as reported by Shuy in Language crimes: The use and abuse of language (...) evidence in the courtroom, Wiley Blackwell, Hoboken, 1993) the features of incitement—formalized as _intentionally encouraging or assisting others to commit an offence_ in the law of England & Wales under section 44 of the Serious Crime Act 2007 (https://www.legislation.gov.uk/ukpga/2007/27/contents)—have been widely debated by linguists and legal scholars alike. This paper draws on two webinars hosted by The Hunting Office in August 2020, which were subsequently leaked by the Hunt Saboteurs Association. Featuring senior figures from the hunting community addressing a nationwide audience of hunt masters, the webinars led to a police investigation and subsequent prosecution and conviction of one of the main speakers, Mark Hankinson, for _encouraging or assisting others to commit an offence under the Hunting Act 2004_. In this paper I explore what, linguistically, is meant by _encouraging or assisting_. Through corpus-assisted pragmatic and discourse analyses I interrogate the webinars to address the question of how precisely Hankinson implied his encouragement of illegal hunting with dogs. The phenomena of collocation and semantic prosody are crucial for understanding how such meanings came to be attached to the contributions Hankinson makes to the webinars. Moreover the paper will examine the contributions of other speakers and demonstrate that the same incriminating linguistic patterns in Hankinson’s talk are also evident in that of those who were not prosecuted. (shrink)

This is a review essay of Gardner, John. 2007, Offences and Defences: Selected Essays in the Philosophy of Criminal Law, Oxford: Oxford University Press, 288 pp.