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  1.  2
    War Crimes: A Brief Road Map for Philosophical Inquiry.Alejandro Chehtman - 2018 - Criminal Law and Philosophy 12 (2):267-270.
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  2.  1
    Justifying Extraterritorial War Crimes Trials.Margaret M. DeGuzman - 2018 - Criminal Law and Philosophy 12 (2):289-308.
    The international community has yet to develop a broadly accepted philosophical rationale for the extraterritorial adjudication of war crimes. Instead, several justifications exist in a state of tension that produces uncertainties in the applicable legal doctrines and policies. This article explains how the competition between the “atrocities” approach on the one hand, and the statist and humanitarian rationales on the other, causes instability in the regime. It advocates for increased attention to the philosophical grounding of extraterritorial war crimes trials, particularly (...)
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  3.  3
    Killing in War: Unasked Questions-Ill-Founded Legitimisation.Albin Eser - 2018 - Criminal Law and Philosophy 12 (2):309-326.
    Killing in war as a matter of course may be inferred from the fact that, as stated by Thomas Hobbes, “all laws are silent in the time of war”. Although this traditional law-suspending power of war has been restricted to a certain degree by modern humanitarian international law, it is still commonly assumed that killing in war, unless and as long as not explicitly forbidden, is per se permitted and thus does not require any further legitimisation. This is in fundamental (...)
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  4.  4
    The Deadly Serious Causes of Legitimate Rebellion: Between the Wrongs of Terrorism and the Crimes of War.Christopher J. Finlay - 2018 - Criminal Law and Philosophy 12 (2):271-287.
    This article challenges the tendency exhibited in arguments by Michael Ignatieff, Jeremy Waldron, and others to treat the Law of Armed Conflict as the only valid moral frame of reference for guiding armed rebels with just cause. To succeed, normative language and principles must reflect not only the wrongs of ‘terrorism’ and war crimes, but also the rights of legitimate rebels. However, these do not always correspond to the legal privileges of combatants. Rebels are often unlikely to gain belligerent recognition (...)
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  5.  5
    Aspiration, Execution, and Controversy: Reply to My Critics.Douglas Husak - 2018 - Criminal Law and Philosophy 12 (2):351-362.
    I respond to Michael Zimmerman and Gideon Yaffe, both of whom have written thoughtful and constructive criticisms of my “Ignorance of Law”. Zimmerman believes I do not go far enough in exculpating morally ignorant wrongdoers; he accuses me of lacking the courage of my convictions in allowing exceptions for reckless wrongdoers and for willfully ignorant wrongdoers. Yaffe, by contrast, thinks I rely on a defective foundation of moral blameworthiness. He proposes an alternative account he alleges to conform more closely to (...)
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  6.  3
    Incitement: A Study in Language Crime.Joseph Jaconelli - 2018 - Criminal Law and Philosophy 12 (2):245-265.
    A person incurs inchoate criminal liability when he incites another person or other persons to commit a crime. The most salient characteristic of incitement, in comparison with the other forms of inchoate crime, is the existence of a communication that is made with a view to persuading the addressee to commit an offence. This article explores the question of why incitement should incur criminal liability, and the nature of such liability. It also identifies its distinctive features. The principal focus here (...)
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  7.  6
    Self-Control in Responsibility Enhancement and Criminal Rehabilitation.Polaris Koi, Susanne Uusitalo & Jarno Tuominen - 2018 - Criminal Law and Philosophy 12 (2):227-244.
    Ethicists have for the past 20 years debated the possibility of using neurointerventions to improve intelligence and even moral capacities, and thereby create a safer society. Contributing to a recent debate concerning neurointerventions in criminal rehabilitation, Nicole Vincent and Elizabeth Shaw have separately discussed the possibility of responsibility enhancement. In their ethical analyses, enhancing a convict’s capacity responsibility may be permissible. Both Vincent and Shaw consider self-control to be one of the constituent mental capacities of capacity responsibility. In this paper, (...)
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  8.  4
    Desert as a Limiting Condition.Steven Sverdlik - 2018 - Criminal Law and Philosophy 12 (2):209-225.
    I examine two related ideas about the role of desert judgments which say, roughly, that, if a punishment is undeserved, it is impermissible to impose it. These can both be taken to claim that desert is a ‘limiting condition’ on the pursuit of consequentialist aims. I discuss what considerations are supposed to support an offender’s desert claim. I first examine the major divide between contemporary retributivist theories: those that take an offender’s desert to supervene only on culpability considerations, and those (...)
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  9.  4
    Is Akrasia Necessary for Culpability? On Douglas Husak’s Ignorance of Law.Gideon Yaffe - 2018 - Criminal Law and Philosophy 12 (2):341-349.
    This paper discusses Douglas Husak’s view that ignorance of the law always reduces culpability since the only fully culpable agents are those who are akratic—who act, that is, in a way that they judge to be wrongful, all things considered. The paper argues that this position is in tension with Husak’s avowed commitment to a reasons-responsiveness theory of culpability, given a plausible way of understanding what that means, and what a reason is.
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  10.  15
    Recklessness, Willful Ignorance, and Exculpation.Michael J. Zimmerman - 2018 - Criminal Law and Philosophy 12 (2):327-339.
    In Ignorance of Law, Douglas Husak’s main thesis is that ignorance of the law typically provides an excuse for breaking the law, but in the case of recklessness he claims that the excuse it provides is only a partial one, and in the case of willful ignorance he claims that it provides no excuse at all. In this paper I argue that, given the general principle to which Husak appeals in order to support his main thesis, he should revise his (...)
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  11.  4
    Procedural Proportionality: The Remedy for an Uncertain Jurisprudence of Minor Offence Justice.Dat T. Bui - 2018 - Criminal Law and Philosophy 12 (1):83-106.
    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 (...)
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  12.  53
    Self-Driving Cars in Dilemmatic Situations: An Approach Based on the Theory of Justification in Criminal Law.Ivó Coca-Vila - 2018 - Criminal Law and Philosophy 12 (1):59-82.
    This article puts forward solutions to some of the ethical and legal dilemmas posed in the current discussion on how to program crash algorithms in autonomous or self-driving cars. The first part of the paper defines the scope of the problem in the criminal legal field, and the next section gives a critical analysis of the proposal to always prioritise the interest of the occupant of the vehicle in situations with conflict of interests. The principle of minimizing social damage as (...)
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  13.  8
    Retributivism and Public Opinion: On the Context Sensitivity of Desert.Göran Duus-Otterström - 2018 - Criminal Law and Philosophy 12 (1):125-142.
    Retributivism may seem wholly uninterested in the fit between penal policy and public opinion, but on one rendition of the theory, here called ‘popular retributivism,’ deserved punishments are constituted by the penal conventions of the community. This paper makes two claims against this view. First, the intuitive appeal of popular retributivism is undermined once we distinguish between context sensitivity and convention sensitivity about desert. Retributivism in general can freely accept context sensitivity without being committed to the stronger notion of convention (...)
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  14.  23
    The Duty to Disregard the Law.Michael Huemer - 2018 - Criminal Law and Philosophy 12 (1):1-18.
    In the practice of jury nullification, a jury votes to acquit a defendant in disregard of the factual evidence, on the grounds that a conviction would result in injustice, either because the law itself is unjust or because its application in the particular case would be unjust. Though the practice is widely condemned by courts, the arguments against jury nullification are surprisingly weak. I argue that, pursuant to the general ethical duty to avoid causing unjust harms to others, jurors are (...)
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  15. Could There Ever Be an App for That? Consent Apps and the Problem of Sexual Assault.Danaher John - 2018 - Criminal Law and Philosophy 12 (1):143-165.
    Rape and sexual assault are major problems. In the majority of sexual assault cases consent is the central issue. Consent is, to borrow a phrase, the ‘moral magic’ that converts an impermissible act into a permissible one. In recent years, a handful of companies have tried to launch consent apps which aim to educate young people about the nature of sexual consent and allow them to record signals of consent for future verification. Although ostensibly aimed at addressing the problems of (...)
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  16.  6
    The Philosophy of Criminalisation: A Review of Duff Et Al.'s Criminalisation Series. [REVIEW]Paul McGorrery - 2018 - Criminal Law and Philosophy 12 (1):185-207.
    The philosophy of criminalisation has been a neglected topic for some time now. A considerable amount of modern criminal justice literature is dedicated to preventing crime and punishing crime, but precious little attention is dedicated to the preliminary question: what should be a crime? Over the last decade, five editors and dozens of authors published a four-part series of edited essays in an attempt to answer that question. The present article is a hybrid of sorts: in one sense, it is (...)
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  17.  15
    Culpability and Irresponsibility.Martin Montminy - 2018 - Criminal Law and Philosophy 12 (1):167-181.
    I defend the principle that a person is blameworthy for her action only if that action was morally wrong. But what should we say about an agent who does the right thing based on bad motives? I present three types of cases that have these features. In each, I argue, the agent is not culpable for her action; however, she violates the norm of moral responsibility, and thus acts in a morally irresponsible way. This analysis, I show, has several virtues. (...)
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  18.  8
    Ignorance Lost: A Reply to Yaffe on the Culpability of Willful Ignorance.Alexander Sarch - 2018 - Criminal Law and Philosophy 12 (1):107-124.
    In a recent paper in this journal, Gideon Yaffe provides an expected utility model of culpability in order to explain why willfully ignorant misconduct sometimes is just as culpable as knowing misconduct. Although promising, I argue here that challenges remain for Yaffe’s view. First, I argue that Yaffe’s proof of the equal culpability of willful ignorance and knowledge is not watertight in certain realistic cases. Next, I argue that Yaffe’s view of culpability is motive-sensitive in a way that sits uncomfortably (...)
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  19.  17
    The Wrong of Mass Punishment.Hamish Stewart - 2018 - Criminal Law and Philosophy 12 (1):45-57.
    The increase in incarceration of offenders in the United States over the last 40 years has created a system of mass incarceration or mass punishment. While consequentialist theories of punishment may generate considerable doubts about the value of this system, it seems that retributive theories of punishment lack the resources to criticize mass punishment. Because of their focus on individual desert, it seems that they can say nothing about punishment in the aggregate. Nevertheless, there are good reasons for a certain (...)
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  20.  3
    Erratum To: Defense Categories and the De Minimis Defense.Melissa Beth Valentine - 2018 - Criminal Law and Philosophy 12 (1):183-183.
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  21.  20
    The Point of Mens Rea: The Case of Willful Ignorance.Gideon Yaffe - 2018 - Criminal Law and Philosophy 12 (1):19-44.
    Under the “Willful Ignorance Principle,” a defendant is guilty of a crime requiring knowledge he lacks provided he is ignorant thanks to having earlier omitted inquiry. In this paper, I offer a novel justification of this principle through application of the theory that knowledge matters to culpability because of how the knowing action manifests the agent’s failure to grant sufficient weight to other people’s interests. I show that, under a simple formal model that supports this theory, omitting inquiry manifests precisely (...)
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