Punishment in Criminal Law

Edited by Gustavo Beade (Universidad de Buenos Aires (UBA), Christian-Albrechts-Universität zu Kiel)
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  1. added 2020-05-29
    Review of David Birks and Thomas Douglas, eds., Treatment for Crime: Philosophical Essays on Neurointerventions in Criminal Justice. [REVIEW]Jason Hanna - forthcoming - Criminal Law and Philosophy:1-7.
    Neurological interventions are sometimes used to prevent criminal behavior. For instance, in some jurisdictions, sex offenders can be compelled to undergo treatment designed to reduce sexual desire. As David Birks and Thomas Douglas observe in their introduction to this volume, “chemical castration” may be just the tip of the iceberg. As neuroscience advances, it could reveal many other ways to control criminality. For instance, pharmacological treatments may help combat violent behavior or drug abuse. Such “crime-preventing neurointerventions” have been controversial. On (...)
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  2. added 2020-05-19
    Justifying Prison Breaks as Civil Disobedience.Isaac Shur - 2019 - Aporia 19 (2):14-26.
    I argue that given the persistent injustice present within the Prison Industrial Complex in the United States, many incarcerated individuals would be justified in attempting to escape and that these prison breaks may qualify as acts of civil disobedience. After an introduction in section one, section two offers a critique of the classical liberal conception of civil disobedience envisioned by John Rawls. Contrary to Rawls, I argue that acts of civil disobedience can involve both violence and evasion of punishment, both (...)
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  3. added 2020-05-15
    Punishing the Oppressed and the Standing to Blame.Andy Engen - 2020 - Res Philosophica 97 (2):271-295.
    Philosophers have highlighted a dilemma for the criminal law. Unjust, racist policies in the United States have produced conditions in which the dispossessed are more likely to commit crime. This complicity undermines the standing of the state to blame their offenses. Nevertheless, the state has reason to punish those crimes in order to deter future offenses. Tommie Shelby proposes a way out of this dilemma. He separates the state’s right to condemn from its right to punish. I raise doubts about (...)
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  4. added 2020-03-25
    Total Collapse: The Case Against Responsibility and Morality.Stephen Kershnar - 2018 - Springer Verlag.
    Moral responsibility and morality lie at the heart of how we view the world. In our daily life, we feel responsibility-related emotions: gratitude, pride, love, forgiveness, resentment, indignation, and shame. We love those who freely and reciprocally love us. Also, we feel that people act rightly or wrongly, make the world better or worse, and are virtuous or vicious. These policies are central to our justifying how we see the world and treat others. In this book, I argue that our (...)
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  5. added 2020-03-25
    Book Review: Retributivism Has a Past: Has It a Future?, Edited by Michael Tonry. [REVIEW]Stephen Kershnar - 2015 - Journal of Moral Philosophy 12 (1):112-115.
    Retributivism is the notion that punishment is justified because, and only because, the wrongdoer deserves it. Proportionality is central to retributivism. A proportional punishment is one in which the severity of a punishment is proportional to the seriousness of the offense (for example, its wrongness or harmfulness). Michael Tonry’s collection is must reading for punishments theorists. The articles are well-chosen and the reflections of theorists such as Andreas von Hirsch, R. A. Duff, and Douglas Husak who have shaped punishment theory (...)
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  6. added 2020-03-25
    The Structure of Rights Forfeiture.Stephen Kershnar - 2002 - Philosophia 29 (1-4):57.
    A person deserves a punishment if and only if he did a culpable wrongdoing and in virtue of this it is other-things-being intrinsically good that he receive punishment and if he were to receive that punishment then it would be through a non-deviant causal chain that includes the culpable wrongdoing. The wrongdoing may be institutional or pre-institutional depending on whether the moral right that the wrongdoer trespasses upon is dependent on a political institution’s goal. Desert in general, and punitive desert (...)
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  7. added 2020-03-25
    George Sher’s Theory of Deserved Punishment, and the Victimized Wrongdoer.Stephen Kershnar - 1997 - Social Theory and Practice 23 (1):75-91.
    George Sher's theory of deserved punishment is unable to account for cases in which wrongdoing does not result in unfair advantages. Sher attempts to connect punishment with distributive justice by suggesting that punishment is deserved inasmuch as the unfair advantage gained by wrongdoing is offset. According to Sher's diachronic theory of fairness, punishment is also deserved when it occurs in response to transgression of a first-order ethical norm. A problem for the theory concerns the justification it provides for disparate treatment (...)
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  8. added 2020-03-25
    The Justification of Deserved Punishment.Stephen Kershnar - 1995 - Dissertation, The University of Nebraska - Lincoln
    A punitive desert-claim should be understood as a claim about the intrinsic value of punishment, where this value is grounded in an act or feature of the person to be punished. The purpose of my project is to explore the structure and justification of such punitive desert-claims. ;I argue that a true punitive desert-claim takes the form and , and that belief in these principles is justified on the basis of our considered moral judgments. The Principle of Deserved Punishment. A (...)
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  9. added 2020-03-24
    Mercy, Retributivism, and Harsh Punishment.Stephen Kershnar - 2000 - International Journal of Applied Philosophy 14 (2):209-224.
    In this article I argue that mercy does not prevent the imposition of harsh punishment from being morally permissible. This article has two parts. In the first part, I argue that mercy is an imperfect duty, because only such a duty-type explains the attributes that are commonly ascribed to mercy. In the second part, I argue that mercy does not present a sufficient moral reason against the regular imposition of harsh punishment because it neither undermines nor systematically overrides or weakens (...)
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  10. added 2020-03-24
    The Justification of Deserved Punishment Via General Moral Principles.Stephen Kershnar - 1995 - Southern Journal of Philosophy 33 (4):461-484.
    If the ground of punishment is a culpable wronging, what is it about a culpable wrongdoing that allows it to morally justify deserved punishment? In particular, we want to know what it is about a culpable wrongdoing that accounts for the intrinsic value of punitive desert or the punitive-desert-related duties that comprise retributivism. I analyze both together in the context of seeking a justification for The Principle of Deserved Punishment, (1). (1) The Principle of Deserved Punishment. A person deserves punishment (...)
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  11. added 2020-03-18
    Nowożytne przeobrażenia systemu karnego według Michela Foucaulta.Michał Wieczorkowski - 2019 - Warszawa, Polska: C.H. Beck.
    Kara – jako immanentny element społeczeństwa – jest obiektem szeroko zakrojonych badań teoretyków różnych dziedzin – prawników, filozofów jak i socjologów. Bardzo często refleksje na jej temat wiązały się z artykułowaniem określonych postulatów – analiza tego, czym jest kara, przybierała tu postać twierdzeń o tym, czym kara być powinna. Dopiero wiek XIX przyniósł głębsze zainteresowanie historią kary. To wtedy właśnie analizy karania zaczęły przyjmować charakter deskryptywny, starając się ująć, jaką funkcję przypisywano karze w danym społeczeństwie w określonym momencie historycznym. Wydaje (...)
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  12. added 2020-03-10
    Neuroenhancement, the Criminal Justice System, and the Problem of Alienation.Jukka Varelius - forthcoming - Neuroethics:1-11.
    It has been suggested that neuroenhancements could be used to improve the abilities of criminal justice authorities. Judges could be made more able to make adequately informed and unbiased decisions, for example. Yet, while such a prospect appears appealing, the views of neuroenhanced criminal justice authorities could also be alien to the unenhanced public. This could compromise the legitimacy and functioning of the criminal justice system. In this article, I assess possible solutions to this problem. I maintain that none of (...)
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  13. added 2020-03-10
    Punishment and Crime.Ross Harrison & R. A. Duff - 1988 - Proceedings of the Aristotelian Society, Supplementary Volumes( 62:139-167.
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  14. added 2020-02-18
    Ends and Means of Transitional Justice (Repr.).Thaddeus Metz - 2020 - In Eric Palmer & Krushil Watene (eds.), Reconciliation, Transitional and Indigenous Justice. Routledge. pp. Ch. 4.
    Reprint of an article first appearing in the Journal of Global Ethics (2018).
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  15. added 2020-02-11
    Equality, Responsibility, and the Law.R. A. Duff - 2002 - Mind 111 (441):164-170.
  16. added 2020-02-11
    Punishment, Communication and Community.Nicola Lacey - 2002 - Mind 111 (442):392-396.
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  17. added 2020-02-11
    A Most Detestable Crime: New Philosophical Essays on Rape. Keith Burgess‐jackson.R. A. Duff - 2001 - Mind 110 (439):729-732.
  18. added 2020-02-11
    In Harm's Way: Essays in Honor of Joel Feinberg.John Kleinig - 1996 - Ethics 107 (1):149-151.
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  19. added 2020-01-31
    Committing Crimes with BCIs: How Brain-Computer Interface Users Can Satisfy Actus Reus and Be Criminally Responsible.Kramer Thompson - 2019 - Neuroethics 1:1-12.
    Brain-computer interfaces allow agents to control computers without moving their bodies. The agents imagine certain things and the brain-computer interfaces read the concomitant neural activity and operate the computer accordingly. But the use of brain-computer interfaces is problematic for criminal law, which requires that someone can only be found criminally responsible if they have satisfied the actus reus requirement: that the agent has performed some (suitably specified) conduct. Agents who affect the world using brain-computer interfaces do not obviously perform any (...)
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  20. added 2020-01-14
    Punishing Artificial Intelligence: Legal Fiction or Science Fiction.Alexander Sarch & Ryan Abbott - 2019 - UC Davis Law Review 53:323-384.
    Whether causing flash crashes in financial markets, purchasing illegal drugs, or running over pedestrians, AI is increasingly engaging in activity that would be criminal for a natural person, or even an artificial person like a corporation. We argue that criminal law falls short in cases where an AI causes certain types of harm and there are no practically or legally identifiable upstream criminal actors. This Article explores potential solutions to this problem, focusing on holding AI directly criminally liable where it (...)
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  21. added 2020-01-10
    The Nature of Punishment Revisited: Reply to Wringe.Nathan Hanna - 2020 - Ethical Theory and Moral Practice 23 (1):89-100.
    This paper continues a debate about the following claim: an agent punishes someone only if she aims to harm him. In a series of papers, Bill Wringe argues that this claim is false, I criticize his arguments, and he replies. Here, I argue that his reply fails.
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  22. added 2019-12-18
    Can Self-Determined Actions Be Predictable?Amit Pundik - 2019 - European Journal of Analytic Philosophy 15 (2):121-140.
    This paper examines Lockie’s theory of libertarian self-determinism in light of the question of prediction: “Can we know (or justifiably believe) how an agent will act, or is likely to act, freely?” I argue that, when Lockie's theory is taken to its full logical extent, free actions cannot be predicted to any degree of accuracy because, even if they have probabilities, these cannot be known. However, I suggest that this implication of his theory is actually advantageous, because it is able (...)
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  23. added 2019-12-15
    The Nature of Reactive Practices: Exploring Strawson’s Expressivism.Thaddeus Metz - 2008 - South African Journal of Philosophy 27 (3):49-63.
    I aim to answer the questions of whether reactive practices such as gratitude and punishment are inherently expressive, and, if so, in what respect. I distinguish seven ways in which one might plausibly characterize reactive practices as essentially expressive in nature, and organise them so that they progress in a dialectical order, from weakest to strongest. I then critically discuss objections that apply to the strongest conception, questioning whether it coheres with standard retributive understandings of why, when and where the (...)
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  24. added 2019-12-11
    Race, Ideology, and the Communicative Theory of Punishment.Steven Swartzer - 2019 - Philosophers' Imprint 19:1-22.
    This paper explores communicative punishment from a non-idealized perspective. I argue that, given the specific racial dynamics involved, and given the broader social and historical context in which they are embedded, American policing and punishment function as a form of racially derogatory discourse. Understood as communicative behavior, criminal justice activities express a commitment to a broader ideology. Given the facts about how the American justice system actually operates, and given its broader socio-political context, American carceral behaviors express a commitment to (...)
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  25. added 2019-11-25
    Successor Identity.Mihailis Diamantis - 2019 - Yale Journal on Regulation 36:1-44.
    The law of successor criminal liability is simple—corporate successors are liable for the crimes of their predecessors. Always. Any corporation that results from any merger, consolidation, spin-off, etc., is on the hook for all the crimes of all the corporations that went into the process. Such a coarse-grained, onetrack approach fails to recognize that not all reorganizations are cut from the same cloth. As a result, it skews corporate incentives against reorganizing in more socially beneficial ways. It also risks punishing (...)
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  26. added 2019-10-30
    Super-Retributivism.Paul Bali - manuscript
    a criminal, C, inflicts an injustice upon their Victim. thus C deserves to suffer an injustice: an excessive punishment.
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  27. added 2019-10-27
    Justified Belief and Just Conviction.Clayton Littlejohn - forthcoming - In Jon Robson & Zachary Hoskins (eds.), Truth and Trial. Routledge.
    Abstract: When do we meet the standard of proof in a criminal trial? Some have argued that it is when the guilt of the defendant is sufficiently probable on the evidence. Some have argued that it is a matter of normic support. While the first view provides us with a nice account of how we ought to manage risk, the second explains why we shouldn’t convict on the basis of naked statistical evidence alone. Unfortunately, this second view doesn’t help us (...)
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  28. added 2019-10-11
    Punishment and Ethical Self-Cultivation in Confucius and Aristotle.Matthew D. Walker - 2019 - Law and Literature 31 (2):259-275.
  29. added 2019-10-01
    Limiting Identity in Criminal Law.Mihailis E. Diamantis - 2019 - Boston College Law Review.
    People change with time. Their personalities, values, and preferences shift incrementally as they accrue life experience, discover new sources of meaning, and form/lose memories. Accumulated psychological changes eventually reshape not just how someone relates to the world about her, but also who she is as a person. This transience of human identity has profound implications for criminal law. Previous legal scholarship on personal identity has assumed that only abrupt tragedy and disease can change who we are. However, psychologists now know (...)
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  30. added 2019-09-25
    Extremely Harsh Treatment.Stephen Kershnar - 2011 - Reason Papers 33:60-81.
    Extremely harsh treatment (for example, unanesthetized tooth, branding with a hot iron, violent shaking, repeated beatings, and car-battery shocks to the genitalia) is often considered unjust. On different accounts, extremely harsh treatment fails to respect persons because it infringes on an absolute right, fails to respect a person’s dignity, constitutes cruel or inhumane treatment, violates rules that rational persons would choose under fair and equal choosing conditions, or results in a person losing his agency to another. Others respond that in (...)
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  31. added 2019-09-25
    Symposium on Punishment.Whitley Kaufman, At Nuyen & Stephen Kershnar - 2008 - International Journal of Applied Philosophy 22 (1):37-57.
    In the middle of the twentieth century, many philosophers came to believe that the problem of morally justifying punishment had finally been solved. Defended most famously by Hart and Rawls, the so-called “Mixed Theory” of punishment claimed that justifying punishment required recognizing that the utilitarian and retributive theories were in fact answers to two different questions: utilitarianism answered the question of why we have punishment as an institution, while retribution answered the question of how to punish individual wrongdoers. We could (...)
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  32. added 2019-09-25
    The Basis Of Deserved Punishment Is A Culpable Wrongdoing.Stephen Kershnar - 1997 - Jahrbuch für Recht Und Ethik 5:497-516.
    The article claims that a person who deserves punishment deserves it because, and only because, she has performed a culpable wrongdoing . The article thus rejects the theory that the basis of deserved punishment is a bad moral character. The argument rejecting The Character Theory of Deserved Punishment is divided into two parts:1) that it is not necessarily the case that an intentional act reflects the agent's moral character, and2) that it is not necessarily the case that a culpable wrongdoing (...)
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  33. added 2019-09-25
    Reflexive Retributive Duties.Stephen Kershnar - 1997 - Jahrbuch Für Recht Und Ethik / Annual Review of Law and Ethics 5:497-516.
    The retributive duty is both held by and owed to the victim of a culpable wrongdoing. This reflexive account fits nicely with a Kantian emphasis on autonomy because the Kantian account allows us to explain how a person can have a duty to oneself. The reflexive account also fits nicely with, and is in part supported by, the notion that a culpable wrongdoer forfeits some of his rights . The waivability of the retributive duty in part explains why it is (...)
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  34. added 2019-09-25
    Kant On Freedom And The Appropriate Punishment.Stephen Kershnar - 1995 - Jahrbuch für Recht Und Ethik 3.
    In "Kant on Freedom and the Appropriate Punishment," the author begins by noting that in The Metaphysics of Morals , Kant asserts that a wrongdoer should be given a punishment that is similar to his wrongdoing. He then makes two interpretive claims with regard to this assertion.First, he claims that the best way to understand this assertion in the context of other things Kant says is that the state is obligated to punish a wrongdoer in a way that imposes on (...)
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  35. added 2019-09-24
    The Expressivist Theory of Punishment Defended.Joshua Glasgow - 2015 - Law and Philosophy 34 (6):601-631.
    Expressivist theories of punishment received largely favorable treatment in the 1980s and 1990s. Perhaps predictably, the 2000s saw a slew of critical rejections of the view. It is now becoming evident that, while several objections to expressivism have found their way into print, three concerns are proving particularly popular. So the time is right for a big picture assessment. What follows is an attempt to show that these three dominant objections are not decisive reasons to give up the most plausible (...)
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  36. added 2019-09-09
    The Intrinsic Good of Justice.Brian John Rosebury - 2019 - Ratio Juris 32 (2):193-209.
    Some retributivists claim that when we punish wrongdoers we achieve a good: justice. The paper argues that the idea of justice, though rhetorically freighted with positive value, contains only a small core of universally-agreed meaning; and its development in a variety of competing conceptions simply recapitulates, without resolving, debates within the theory of punishment. If, to break this deadlock, we stipulate an expressly retributivist conception of justice, then we should concede that punishment which is just may be morally wrong.
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  37. added 2019-09-09
    Punishment and Blame for Culpable Indifference.Kenneth W. Simons - 2015 - Inquiry: An Interdisciplinary Journal of Philosophy 58 (2):143-167.
    In criminal law, the mental state of the defendant is a crucial determinant of the grade of crime that the defendant has committed and of whether the conduct is criminal at all. Under the widely accepted modern hierarchy of mental states, an actor is most culpable for causing harm purposely and progressively less culpable for doing so knowingly, recklessly, or negligently. Notably, this hierarchy emphasizes cognitive rather than conative mental states. But this emphasis, I argue, is often unjustified. When we (...)
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  38. added 2019-09-09
    On Punishing Emotions.Brian Rosebury - 2003 - Ratio Juris 16 (1):37-55.
    This paper challenges recent influential arguments which would encourage legislators and courts to give weight to an assessment of the “evaluative judgements” expressed by the emotions which motivate crimes. While accepting the claim of Kahan and Nussbaum and others that emotions, other than moods, have intentional objects , and are not mere impulses which bypass cognition, it suggests the following criticisms of their analysis. First, the concept of an emotional “evaluative judgement” tends to elide the distinction between “judgements” that are (...)
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  39. added 2019-09-09
    Dimensions of Negligence in Criminal and Tort Law.Kenneth W. Simons - 2002 - Theoretical Inquiries in Law 3 (2).
    This article explores different dimensions of the concept of negligence in the law. The first sections focus on the fundamental distinction between conduct negligence, a conception that dominates tort law; and cognitive negligence, a conception that is much more important in criminal law. The last major section identifies five significant institutional functions served by a legal negligence standard: expressing a legal norm in the form of a standard rather than a rule; personifying fault; empowering the trier of fact to give (...)
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  40. added 2019-09-09
    Book Review: Social Meaning, Retributivism, and Homicide. [REVIEW]Kenneth W. Simons - 2000 - Law and Philosophy 19 (3):407 - 429.
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  41. added 2019-09-05
    Texting, Suicide, and the Law: The Case Against Punishing Michelle Carter.Mark Tunick - 2019 - London and New York: Routledge.
    Through a series of texts and phone calls, Michelle Carter encouraged her boyfriend Conrad Roy to act on his suicidal thoughts, and after Roy killed himself, Carter was convicted of involuntary manslaughter. The case has received widespread attention, generating reactions ranging from rage at Ms. Carter to disbelief that she was convicted. An issue emphasized up to now is what it might mean for the First Amendment right of free speech if we hold that words can kill. In presenting the (...)
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  42. added 2019-07-07
    African Values and Capital Punishment (Repr.).Thaddeus Metz - 2018 - In David R. Morrow (ed.), Moral Reasoning: A Text and Reader on Ethics and Contemporary Moral Issues. Oxford University Press. pp. 372-377.
    Reprint of a chapter first published in _African Philosophy and the Future of Africa_ (2011).
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  43. added 2019-06-29
    Moral Uncertainty and the Criminal Law.Christian Barry & Patrick Tomlin - 2019 - In Kimberly Ferzan & Larry Alexander (eds.), Handbook of Applied Ethics and the Criminal Law. New York: Palgrave.
    In this paper we introduce the nascent literature on Moral Uncertainty Theory and explore its application to the criminal law. Moral Uncertainty Theory seeks to address the question of what we ought to do when we are uncertain about what to do because we are torn between rival moral theories. For instance, we may have some credence in one theory that tells us to do A but also in another that tells us to do B. We examine how we might (...)
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  44. added 2019-06-15
    Biomarkers for the Rich and Dangerous: Why We Ought to Extend Bioprediction and Bioprevention to White-Collar Crime.Hazem Zohny, Thomas Douglas & Julian Savulescu - 2019 - Criminal Law and Philosophy 13 (3):479-497.
    There is a burgeoning scientific and ethical literature on the use of biomarkers—such as genes or brain scan results—and biological interventions to predict and prevent crime. This literature on biopredicting and biopreventing crime focuses almost exclusively on crimes that are physical, violent, and/or sexual in nature—often called blue-collar crimes—while giving little attention to less conventional crimes such as economic and environmental offences, also known as white-collar crimes. We argue here that this skewed focus is unjustified: white-collar crime is likely far (...)
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  45. added 2019-06-07
    Wringe, Bill. An Expressive Theory of Punishment.London: Macmillian, 2016. Pp. 186. $99.00.Katrina Sifferd - 2016 - Ethics 127 (1):319-323.
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  46. added 2019-06-06
    What is Fair Punishment?Jeffrey Reiman - 2011 - Journal of Catholic Social Thought 8 (1):19-35.
  47. added 2019-06-06
    Action and Agency in the Criminal Law: Vincent Chiao.Vincent Chiao - 2009 - Legal Theory 15 (1):1-23.
    This paper offers a critical reconsideration of the traditional doctrine that responsibility for a crime requires a voluntary act. I defend three general propositions: first, that orthodox Anglo-American criminal theory fails to explain adequately why criminal responsibility requires an act. Second, when it comes to the just definition of crimes, the act requirement is at best a rough generalization rather than a substantive limiting principle. Third, that the intuition underlying the so-called “act requirement” is better explained by what I call (...)
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  48. added 2019-06-06
    The Problem with Punishment: An Examination of Retributivism, Deterrent Violence, and Recidivism.Rob Gildert - 2003 - The Acorn 12 (1):39-48.
  49. added 2019-06-06
    World Poverty and Human Rights.Thomas Pogge - 2002 - Ethics and International Affairs 19 (1):1-7.
    Despite a high and growing global average income, billions of human beings are still condemned to lifelong severe poverty, with all its attendant evils of low life expectancy, social exclusion, ill health, illiteracy, dependency, and effective enslavement. This problem is solvable, despite its magnitude.
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  50. added 2019-06-06
    Punishment as Societal Defense.George Sher - 1999 - Philosophical and Phenomenological Research 59 (2):548-550.
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1 — 50 / 995