Written by leading philosophers and lawyers from the United States and the United Kingdom, this collection of original essays offers new insights into the doctrines that make up the general part of the criminal law. It sheds theoretical light on the diversity and unity of the general part and advances our understanding of such key issues as criminalisation, omissions, voluntary actions, knowledge, belief, reckelssness, duress, self-defence, entrapment and officially-induced mistake of law.

Criminal law exceptionalism, or so I suggest, has turned into an ideology in German and Continental criminal law theory. It rests on interrelated claims about the (ideal or real) extraordinary qualities and properties of the criminal law and has led to exceptional doctrines in constitutional criminal law and criminal law theory. It prima facie paradoxically perpetuates and conserves the criminal law, and all too often leads to ideological thoughtlessness, which may blind us to the (...) dark sides of criminal laws in action. (shrink)

Criminal law exceptionalism, or so I suggest, has turned into an ideology in German and Continental criminal law theory. It rests on interrelated claims about the (ideal or real) extraordinary qualities and properties of the criminal law and has led to exceptional doctrines in constitutional criminal law and criminal law theory. It prima facie paradoxically perpetuates and conserves the criminal law, and all too often leads to ideological thoughtlessness, which may blind us to the (...) dark sides of criminal laws in action. (shrink)

How are we to understand criminal law reform? The idea seems simple—the criminal law on the books is wrong: it should be changed. But 'wrong’ how? By what norms 'wrong’? As soon as one tries to answer those questions, the issue becomes more complex. One kind of answer is that the criminal law is substantively wrong: that is, we assume valid norms of background political morality, and we argue that doctrinally the criminal law on the books (...) does not embody those norms. Another kind of answer is that the criminal law as it stands presupposes certain empirical facts, and yet those facts do not hold. Traditionally, criminal law reform has been informed by both these answers. Analytical theorists examine doctrine for its conceptual structure, and social scientists examine the actual workings of the criminal justice system. This tidy picture is, however, challenged by social constructivist accounts of the criminal law. They challenge the stability and conceptual purity of doctrine, and they challenge the objectivity of social science. On the basis of these challenges, they undermine the ambitions of traditional criminal law reform, and argue that the only reforms to the criminal law that matter are politicized ones—that criminal law reform is pointless unless it serves the interests of the marginalized and the dispossessed. It seems undeniable that in some sense our perceptions of crime in our society are indeed moulded by social forces, and that crime does not exist independently of the social structures and processes that help to define and control it. But why should those insights have the implications for our understanding of criminal law reform that they are alleged to have? How could it follow from those insights that criminal law reform either becomes radicalized or valueless? The aim of this paper is to show that what can legitimately be taken from the emphasis on the social constructedness of crime does not require wholesale abandonment of the traditional picture of criminal law reform, even though it may require some modifications of that picture. (shrink)

American criminal law is committed to some version of the doctrine of double effect. In this paper, I defend a new variant of the agent-centered rationale for a version of DDE that is of particular relevance to the criminal law. In particular, I argue for a non-absolute version of DDE that concerns the relative culpability of intending a bad or wrongful state of affairs as opposed to bringing it about merely knowingly. My aim is to identify a (...) particular feature of the former in virtue of which it is pro tanto more culpable than the latter. Providing an agent-centered argument of this kind for a culpability version of DDE, I argue, is an especially attractive route to take for those who are interested in vindicating the way the criminal law actually encodes DDE. (shrink)

In the last two decades, the philosophy of criminal law has undergone a vibrant revival in Canada. The adoption of the Charter of Rights and Freedoms has given the Supreme Court of Canada unprecedented latitude to engage with principles of legal, moral, and political philosophy when elaborating its criminal law jurisprudence. Canadian scholars have followed suit by paying increased attention to the philosophical foundations of domestic criminal law. Because of Canada's leadership in international criminal law, both (...) at the level of the International Criminal Court and of specific war crimes tribunals, they have also begun to turn their attention to international criminal law per se. This collection seeks to bring all these Canadian voices together for the first time, and evidence the fact that criminal law theory is no longer to be associated exclusively with the older British, German and American traditions. The topics covered include questions of philosophical methodology, the legitimate scope of domestic and international criminalization, rationales for criminal law defences in both domestic and international law, the philosophical underpinnings of specific crimes and forms of joint responsibility, as well as the theorization of criminal procedure and evidence law. ENDORSEMENTS "In continental Europe, academic commentary on the criminal law has long manifested large philosophical ambitions. Less so in common-law countries, where the dominance of jury trial and the piecemeal development of case-law, together with the famously robust attitudes of common lawyers, have militated against detailed philosophical engagement with doctrine. Over the last 20 years or so, however, new generations of philosophically-literate lawyers and legally-informed philosophers have overcome the historic resistance. Nowhere more so, it seems, than in Canada, where the common law and civilian traditions meet. In 'Rethinking Criminal Law Theory', François Tanguay-Renaud and James Stribopoulos have joined with 14 talented Canadian colleagues to showcase the tremendous breadth and depth of their contemporary national contribution to the subject. Ranging across topics as diverse as emergency, obscenity, and insanity, these essays - without exception insightful and penetrating -set a high standard for the rest of us to aspire to.'' John Gardner, University of Oxford "'Rethinking Criminal Law Theory' is an excellent collection of essays demonstrating the vigour, creativity and range of Canadian criminal justice scholarship. It covers a wide range of problems and issues both in the domestic and the international context. Core questions are examined in depth and new questions are brought to the fore. I recommend it very highly to criminal lawyers and philosophers of the criminal law." Professor Victor Tadros, University of Warwick "'Rethinking Criminal Law Theory 'is packed with outstanding contributions from criminal law theorists who are among the best not only in Canada, but in the whole English-speaking world. Broad and deep in its coverage, the collection offers fresh approaches to a wide range of cutting-edge issues in the field. It provides a resource readers will come back to repeatedly." Stuart Green, Professor of Law and Justice Nathan L Jacobs Scholar, Rutgers University. (shrink)

The paper deals with the notion of guilt according to Heidegger’s philosophy and its repercussions for the understanding of guilt according to criminal law doctrine and theory. Heidegger’s notion on guilt is tantamount to Dasein’s incapacity to exhaust all its existential possibilities, whereas legal guilt has to do only with man’s legal indebtedness, which is an aspect of inauthenticity, a deficient mode of ontological responsibility. This does not mean, though, sheer amoralism or apologetics to violence. In late Heidegger (...) one may discern traces of an ontological ethics, which refers to Dasein’s attunement to Being and especially to the sparing and healing of the Fourfold as these are coming to presence through poetic dwelling; through, that is, an authentic contact with the Uncanny, meaning a radical exposure to Being’s enigmatic hiddenness, the endurance in front of the abyss of Nothingness. In this framework there remains no space for assuming any moral-juridical responsibility, because Dasein is predestined to err constantly due to the ruptures and turnings of Being’s history. Legal blameworthiness is thus obsolete because, injustice being according to Heidegger the dis-jointure of Being’s order, there is ontologically no imputable ‘legal’ crime; there is only Dasein’s eventful projecting-opening within errancy. Whether though this notion of ‘Being’ is a new ‘arche’ to be superseded emerges then as the crucial question. To regain any non-metaphysical notion of guilt is after Heidegger only possible through a theoretical move which cannot ignore his legacy but also has to go beyond the Master. (shrink)

This chapter contains sections titled: Why We Punish How We Punish What We Punish Whom We Punish Bibliography.

Respondeat superior is a legal doctrine conferring liability from one party onto another because the latter stands in some relationship of authority over the former. Though originally a doctrine of tort law, for the past century it has been used within the criminal law, especially to the end of securing criminal liability for corporations. Here, I argue that on at least one prominent conception of criminal responsibility, we are not justified in using this doctrine (...) in this way. Firms are not answerable for the crimes committed by their employees, because firms cannot answer as to why the crime was committed; they lack the authority to offer the employee’s reasons for action. Though this rules out respondeat superior as a general principle, I show contexts in which vicarious liability is still appropriate in the criminal law, and I respond to a number of other concerns raised by this picture. (shrink)

Foundational Texts in Modern Criminal Law presents essays in which scholars from various countries and legal systems engage critically with formative texts in criminal legal thought since Hobbes. It examines the emergence of a transnational canon of criminal law by documenting its intellectual and disciplinary history and provides a snapshot of contemporary work on criminal law within that historical and comparative context. Criminal law discourse has become, and will continue to become, more international and comparative, (...) and in this sense global: the long-standing parochialism of criminal law scholarship and doctrine is giving way to a broad exploration of the foundations of modern criminal law. The present book advances this promising scholarly and doctrinal project by making available key texts, including several not previously available in English translation, from the common law and civil law traditions, accompanied by contributions from leading representatives of both systems. (shrink)

Written by a noted expert in criminal law, this book explores the philosophical underpinnings of the law's major doctrines concerning actus reus, mens rea, and defences, showing that they are not always driven by culpability. They are grounded also in principles of moral responsibility, ascriptive responsibility, and wrongdoing. As such, they engage wider debates about wrongdoing, and about the boundaries between liability and freedom. This multi-textured analysis allows this book to take more nuanced positions about many important controversies in (...) criminal law. It argues, for example, that liability for omissions and for negligence-and even some strict liability elements-can sometimes be legitimate yet, at the same time, should be relatively rare. It also explains why principles of causation can differ in the criminal law from other contexts; what is wrong with the 'voluntary act' requirement; and why luck can affect the wrongs we commit without changing our degree of blameworthiness for committing them. The book concludes with an account of the major types of defences, and of how they interact with an agent's wrong and her underlying motivations.This volume presents a coherent and rich vision of the criminal law that, by its sheer breadth, makes a distinctive contribution to the literature, of interest to lawyers and philosophers alike. (shrink)

One of the first things striking readers of Criminal Law Conversations is its unusual methodology. The editors of this volume have put together 31 conversations around as many cutting edge and influential articles. This article considers critically some discussions representative of each of the book’s three parts: Principles, Doctrine, Administration and provide a glimpse of the richness and variety of Criminal Law Conversations.

Over the past decade, both the doctrine and the practice of criminal law have come under intensely critical review by feminist scholars and reformers. The territory under reexamination by or because of feminists spans the problems of women as witnesses, defendants, and prisoners in the criminal justice system; it extends to the situation of women as potential victims and offenders in diverse offense circumstances. Crimes in which the defendant or victim is typically female (e.g., prostitution, rape) are (...) predictable subjects of feminist concern, but attention has extended as well to the dynamics of women's experience (arguably distinctive and certainly neglected) in connection with such offenses as assault, shoplifting, drug offenses, and even armed robbery.Feminist criticism and reform efforts have focused for the most part at the level of specific rules or particular areas of practice. In this paper I want to comment on the structure of the feminist critique and to compare its underlying assumptions to those of criminal law as it has been traditionally understood and practiced. In at least some of its prominent versions, feminism entails orientations and commitments incompatible with those of the received criminal law tradition. To the extent that this is true, criminal law, constructed and expounded almost exclusively by males, can fairly be characterized (descriptively) as “sexist” or at least “gendered” (that is, male-oriented) in its core assumptions. Moving to normative ground, I suggest that if the descriptive claims of the feminist movement are true to any substantial extent, then criminal law – conceived in terms seemingly uncongenial to a large part of our population – would require thorough reexamination. (shrink)

This paper addresses three doctrinal phenomena of which it finds evidence in English law: the quiet extension of the criminal law so as to criminalise that which is by no means an obvious offence; the creation of offences the goal of which is not to guide potential offenders away from crime; and the existence of offending behaviour which is not itself thought to justify arrest or prosecution. While such phenomena have already been criticised by other criminal law theorists, (...) this paper offers a critique to which little attention has yet been paid. It argues that the existence of these phenomena has been concealed from public view: that the organs of state have encouraged the belief that they are no part of English law. The paper then argues that it is high time the state came clean. The state owes its people answers for the imposition of the criminal law: it must account for the creation and enforcement of any given criminal offence. When the state misleads its people about the criminal law’s scope, goals and enforcement, it refuses to provide those people with the answers they are owed. (shrink)

The question of when a person is culpable for taking an unjustified risk of harm has long been controversial in Anglo-American criminal law doctrine and theory. This survey of the approaches adopted in England and Wales, Canada, Australia, the United States, New Zealand and Scotland argues that they are converging, to differing extents, around a 'Standard Account' of culpable unjustified risk-taking. This Standard Account distinguishes between awareness-based culpability and inadvertence-based culpability for unjustified risk-taking. With reference to criminal (...) law theory and philosophical literature, the author argues that, when explained appropriately, the Standard Account is defensible and practical. Defending the Standard Account involves analysing in depth a number of controversial matters, including the meaning of advertence/awareness, the role of attitudes such as indifference in culpable risk-taking, and the question of whether negligence should be used in the criminal law. (shrink)

The law values fairness, proportionality, and predictability. Accordingly, in the context of criminal law, punishments should be carefully calibrated to reflect the harm caused by an offense and the culpability of the offender. Yet, while this would suggest the dominance of “smooth” input/output relationships—for example, such that a minuscule increase in culpability would result in a correspondingly small increase in punishment—in fact, the law is laden with “bumpy” input/output relationships. Indeed, a minuscule change in input (be it of harm, (...) culpability, or any number of other measures) may result in a drastic change in output, creating significant discontinuities. Leading scholars have argued that smooth input/output relationships, which feature careful gradation and calibration, better accord with dominant theories of punishment than do bumpy relationships, which lack fine-tuning. Accepting as a starting premise that smooth input/ output relationships are to be preferred in the criminal law, this Article focuses on the significant doctrinal and practical impediments to smoothing out these relationships. This analysis reveals challenges to smoothing out relationships between inputs and outputs, as well as the difficulties associated with addressing discontinuous relationships among inputs and outputs. Specifically, it exposes the law’s classification of inputs and outputs itself as contestable and responsible for a range of hard-to-resolve discontinuities. In doing so, this Article begins the task of laying the groundwork for further analysis and possible reforms. (shrink)

The author examines two proposals to expand legal recognition of individual control over physical integrity. Protections for individual autonomy are discussed in relation to the right to die, euthanasia, medical treatment, and consensual and assaultive sexual behaviours. The author argues that at present, the legal doctrine of consent protects only those individual preferences which are seen to be congruent with dominant societal values; social preferences and convenience override all other individual choices. Under these conditions, more freedom to waive rights (...) of physical integrity can only place socially vulnerable persons at great risk of abuse. (shrink)

This volume brings together a collection of essays, many of them scholarly classics, which form part of the debate around three questions central to criminal law theory: firstly, what conduct should be necessary for criminal liability, and what sufficient? Secondly, what culpability should be necessary for criminal liability, and what sufficient? Finally, essays consider the question of how criminal law rules should be best organized into a coherent and clarifying doctrinal structure.

Increasingly, international governmental networks and organisations make it necessary to master the legal principles of other jurisdictions. Since the advent of international criminal tribunals this need has fully reached criminal law. A large part of their work is based on comparative research. The legal systems which contribute most to this systemic discussion are common law and civil law, sometimes called continental law. So far this dialogue appears to have been dominated by the former. While there are many reasons (...) for this, one stands out very clearly: Language. English has become the lingua franca of international legal research. The present book addresses this issue. Thomas Vormbaum is one of the foremost German legal historians and the book's original has become a cornerstone of research into the history of German criminal law beyond doctrinal expositions; it allows a look at the system's genesis, its ideological, political and cultural roots. In the field of comparative research, it is of the utmost importance to have an understanding of the law's provenance, in other words its historical DNA. (shrink)

The United States Supreme Court has repeatedly insisted that what distinguishes a criminal punishment from a civil penalty is the presence of a punitive legislative intent. Legislative intent has this role, in part, because court and commentators alike conceive of the criminal law as the body of law that administers punishment; and punishment, in turn, is conceived of in intention-sensitive terms. I argue that this understanding of the distinction between civil penalties and criminal punishments depends on a (...) highly controversial proposition in moral theory – namely, that an agent’s intentions bear directly on what it is permissible for that agent to do, a view most closely associated with the doctrine of double effect. Therefore, legal theorists who are skeptical of granting intention this kind of significance owe us an alternative account of the distinctiveness of the criminal law. I sketch the broad outlines of just such an alternative account – one that focuses on the objective impact of legislation on a class of protected interests, regardless of the state’s motivations in enacting the legislation. In other words, even if the concept of punishment is unavoidably intention-sensitive, it does not follow that the boundaries of the criminal law are likewise intention-sensitive, because the boundaries of the criminal law may be drawn without reference to the concept of punishment. I conclude by illustrating the application of this view to a pair of well-known cases, and noting some of its ramifications. (shrink)

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 the “practical-agency condition,” according to which punishment in a specific instance is unjust unless the crime charged was caused or constituted by the agent's conduct qua practically rational agent. The practical-agency condition is defended as a reconstruction of what is worth retaining in Anglo-American criminal law's traditional notion of an “act requirement.”. (shrink)

The willful ignorance doctrine says defendants should sometimes be treated as if they know what they don't. This book provides a careful defense of this method of imputing mental states. Though the doctrine is only partly justified and requires reform, it also demonstrates that the criminal law needs more legal fictions of this kind. The resulting theory of when and why the criminal law can pretend we know what we don't has far-reaching implications for legal practice (...) and reveals a pressing need for change. (shrink)

The paper argues for attaching a significant role to the dignity of offenders as a limitation on the scope of substantive criminal law. Three different aspects of human dignity are discussed. Human dignity is closely connected with the principle of culpability. Respecting the dignity of offenders requires that we assign criminal liability according to the actual attitudes of the offenders towards the interests protected by the offence. The doctrine of natural and probable consequence of complicity, which allows (...) us to assign liability for mens rea offenses to a negligent offender, violates the dignity of the offender; it treats the incautious offender as if she had willfully expressed disrespect towards the protected interest. The human dignity core of privacy is invaded by criminalizing the private possession of child pornography. By extending the prohibition of the creation, sale and distribution of child pornography to the private possession of pornography, the State attempts to control the way the individual expresses an essential part of the self—his sexual fantasies—within himself. Dignity demands that our actions convey an attitude of respect towards human beings. The expressive meaning of disrespect is culture-dependent. The historical association with totalitarian regimes explains our reluctance to impose a legal duty to report past crime: the individual who is legally required to turn a suspect into the police is viewed as an “informant.”. (shrink)

Even when a person appears to have consented to another’s interference with her interests, we sometimes treat this apparent consent as ineffective. This may either be because the law does not permit consent to validate the actions concerned, or because the consent is undermined by the presence of additional factors which render it insufficiently autonomous to be effective. In this paper I propose that the project of categorising and systematically analysing the latter set of cases, would be furthered by recognising (...) (1) that prima facie consent is undermined when the prima facie consenter’s autonomy to choose whether or not to consent has been unfairly constrained, and (2) that theoretical and doctrinal clarity can be promoted by analysing the factors that unfairly constrain autonomy in the criminal law using a framework developed in contract law to determine analogous questions arising in relation to assent to a contract. (shrink)

: This paper considers whether a physician is criminally liable for administering a dose of painkillers that hastens a patient's death. The common wisdom is that a version of the doctrine of double effect legally protects the physician. That is, a physician is supposedly acting lawfully so long as the physician's primary purpose is to relieve suffering. This paper suggests that the criminal liability issue is more complex than that. Physician culpability can be based on recklessness, and recklessness (...) hinges on whether a physician has taken an unjustifiable risk of hastening death. The authors identify three conditions of justifiability. Their analysis helps to explain the distinction between euthanasia, which is legally banned, and the use of risky analgesics, which is permitted in limited circumstances. (shrink)

In the first of these two lectures Professor Hart is concerned with certain controversies and changes of attitude towards the question of moral guilt—mens rea,’ the guilty mind’—in criminal proceedings according to English law. There is, on the one hand and at one extreme, the attitude of the McNaughten Rules which excludes guilt only in the case of a ‘defect of reason’; at the other extreme there is the modern position, represented by Lady Wootton according to which the conception (...) of metis rea should be dropped altogether—criminal proceedings are concerned with ‘social hygiene’ and have nothing to do with responsibility: the question of responsibility comes up only after a verdict has been reached in estimating what steps are likely to have the best consequences for the ‘criminal’ and for society. Between these extremes Professor Hart takes a kind of middle course, what he calls ‘a moderate form of the new doctrine’: ‘Under this scheme mens rea would continue to be a necessary condition of liability to be investigated and settled before conviction except so far as it relates to mental abnormality. The innovation would be that the accused person would not be able to adduce any form of mental abnormality as a bar to conviction. The question of his mental abnormality would under this scheme be investigated only after conviction and would primarily be concerned with his present rather than his past mental state’. He admits that there are some practical difficulties against this view, but he does not consider the theoretical difficulty that the theory does away with the principle that criminal conviction must be based on guilt and responsibility. (shrink)

The authors use social science methodology to determine whether a doctrinal shift—from an objectivist view of criminality in the common law to a subjectivist view in modem criminal codes—is consistent with lay intuitions of the principles of justice. Commentators have suggested that lay perceptions of criminality have shifted in a way reflected in the doctrinal change, but the study results suggest a more nuanced conclusion: that the modern lay view agrees with the subjectivist view of modern codes in defining (...) the minimum requirements of criminality, but prefers the common law's objectivist view of grading the punishment deserved. The authors argue that there is practical value in having criminal law track shared community intuitions of the proper rules for assigning liability and punishment. For that reason, the study results support the often criticized subjectivist view of modern codes in setting the minimum requirements of liability, but disapprove of the modern codes' shift away from the common law's objectivist view of grading. (shrink)

Orthodox criminal law doctrine treats mistakes of law and mistakes of fact differently for purposes of both exculpation and inculpation. Kenneth Simons’ paper in general defends this orthodoxy. I have earlier criticized the criminal law’s attempt to distinguish mistakes of law from mistakes of fact, and I continue to maintain, in opposition to Simons, that the distinction is problematic.

Catholic doctrine’s strict prohibition on abortion can lead clinicians or institutions to conscientiously refuse to provide abortion, although a legal duty to provide abortion would apply to anyone who refused. Conscientious refusals by clinicians to end a pregnancy can constitute murder or reckless homicide under American law if a woman dies as a result of such a refusal. Such refusals are not immunized from criminal liability by the constitutional right to the free exercise of religion or by statutes (...) that confer immunity from criminal homicide prosecution. Core principles of the rule of law require the state to protect the lives of all persons equally and to place the life and health of persons above any the interests of providers have in moral integrity or in respecting the moral status of prenatal humans. In some states criminal liability related to conscientious objection also applies to corporate hospital officials. (shrink)

This book reflects the belief that a careful study of the Law of Attempts should be both interesting in itself, as well as being a productive route into a number of larger and deeper issues in criminal law theory and in the philosophy of action. By identifying the legal doctrines which courts and legislatures have developed or adopted, the author goes on to ask whether and how they can be rationalized or rendered persuasive. Such an approach involves paying detailed (...) attention to cases. The book is also unusual in that it grapples with English, Scots and US law, showing great breadth of research as well as philosophical sophistication. This is a work which is likely to become a seminal study and a major contribution to the study of law and legal philosophy. (shrink)

The modern Lithuanian legal doctrine recognises that criminal liability is a last resort (ultima ratio) protecting the society from various law violations. This idea has got deep roots in criminology and is obviously based on the position of rational approach towards the state criminal policy. However, it is not clear whether it is of obligatory legal status to the legislature and the courts. This article attempts to present the idea of a last resort as a concept based (...) on the constitutional principles of the rule of law, justice, proportionality and rationality in the legislation and case law. The author concludes that the main precursors of the ultima ratio principle are the German legal doctrine of protection of legal goods (Rechtsgüterschutz) and Harm principle respected in the common law tradition, as well as the need for protection of human rights in the democratic world. These concepts raise the duty of the legislator to justify the act of criminalisation by legitimate purpose and to comply with certain constitutional limits of application of criminal law. The idea of criminal liability as a last resort is recognised both in the jurisprudence of the Constitutional Court (obiter dictum) and in the practice of the Supreme Court of Lithuania reasoning particular decisions in criminal cases, especially delimiting criminal and other types of legal liability. The author concludes that the fact of discrepancy of criminal law to ultima ratio test can be one of the arguments in support of its objection to the Constitution and even the European Convention on Human Rights and Fundamental Freedoms. At the same time, the author of the article has found that many norms of the Criminal Code are in conflict with the idea of a last resort. (shrink)

This chapter provides a survey of Kierkegaard's views of systematic theology, doctrine, and dogmatics. It demonstrates that while Kierkegaard's view of theology is generally negative, for he regards it as a human enterprise created in order to avoid doing God's Word, his attitude to doctrine and dogmatics is nuanced and complex. Kierkegaard rejects doctrine insofar as it objectifies Christianity, but nevertheless generally accepts the classic doctrines of the Christian faith and sees no reason to reform them. This (...) ambivalence toward doctrine stems from his conviction that the task facing the believer is not to reflect on doctrine, but to appropriate and apply it existentially to his/her own individual existence. Similarly, although Kierkegaard rejects the efforts of contemporary dogmaticians, dogmatics itself is valid insofar as it reproduces the paradoxical character of Christianity and the decision between faith and offense with which Christian dogmas confront every human being. (shrink)

The theological energies released by Martin Luther in 1517 created a set of theological insights and problems that eventually led to the development of kenotic Christology. This article traces how kenotic Christology originated in the Eucharistic Controversy between Luther and Zwingli, before receiving its first extensive treatment in the debate between the Lutheran theologians of Tübingen and Giessen in,the early seventeenth century. Attention then turns to the nine-teenth century, when doctrinal tensions resulting from the enforced union of the Prussian Lutheran (...) and Reformed churches created the conditions for a new flowering of kenotic Christology in the theologies of Ernst Sartorius and, subsequently, Gottfried Thomasius. Kenotic Christology ultimately originates with Luther, however, for it owes its existence to the creative theological energies he unleashed and which remain his lasting legacy. (shrink)

In Warrant and Proper Function, Alvin Plantinga develops an argument designed to show that naturalism is self-defeating. One component of this larger argument is what I call Plantinga's belief-cum-desire argument, which is intended to establish something more specific: that if the content of our beliefs does causally effect behaviour (that is to say, semantic content is not epiphenomenal), and if naturalism and current evolutionary doctrine are correct, then the probability that we possess reliable cognitive mechanisms must be either inscrutable (...) or low. This paper aims to refute Plantinga's belief-cum-desire argument. (shrink)

This essay examines the theology of the nineteenth century Danish theologian and churchman Hans Lassen Martensen, focusing on the disputed question of the kenotic character of Martensen's Christology. A survey of the scholarship on this question is followed by discussions of Martensen's doctrine of God and his Christology, giving particular attention to his controversial notion of the double life of the Logos, i. e. the view that the Logos continued to enjoy an unlimited divine existence in the sphere of (...) eternity while simultaneously living a limited, earthly human existence for the duration of the incarnation. The essay concludes by arguing that Martensen has developed a form of Nestorianism and that his Christology can best be classified as ‘Nestorian kenoticism,’ i. e. an eccentric and problematic form of Christology which affirms the abandonment by the logos ensarkos of the divine attributes during the incarnation, while at the same time insisting that the logos asarkos remains unaffected and in full possession of his powers. (shrink)

This study contrasts the evidence exclusion principles within the adversarial legal system of the United States, particularly the “fruit of the poisonous tree” doctrine, with the inquisitorial system of Vietnam. The U.S. model, emphasizing the exclusion of unlawfully obtained evidence to protect the presumption of innocence and ensure fair trials, relies on the Fourth Amendment to prevent police misconduct. Conversely, Vietnam, with its focus on uncovering the truth, has started to adopt adversarial elements, including evidence exclusion, to align with (...) international standards and enhance human rights protections within its criminal justice system. The research examines the application of the “fruit of the poisonous tree” doctrine in the U.S. and its implications for Vietnamese legal reforms, especially the proposed amendments to Article 87 of Vietnam's Criminal Procedure Code. These reforms aim to exclude unlawfully obtained evidence while allowing for the use of evidence collected independently from illegal actions. Highlighting the need for a balanced approach that respects procedural rights and promotes justice, the study advocates for comprehensive legal reforms in Vietnam. It suggests amendments to refine evidence exclusion principles, ensuring they reflect both the Vietnamese context and the progressive features of U.S. criminal justice practices, thereby enhancing the fairness and integrity of criminal proceedings. (shrink)

This incisive book deals with the use of the criminal law to enforce morality, in particular sexual morality, a subject of particular interest and importance since the publication of the Wolfenden Report in 1957. Professor Hart first considers John Stuart Mill's famous declaration: "The only purpose for which power can be rightfully exercised over any member of a civilized community is to prevent harm to others." During the last hundred years this doctrine has twice been sharply challenged by (...) two great lawyers: Sir James Fitzjames Stephen, the great Victorian judge and historian of the common law, and Lord Devlin, who both argue that the use of the criminal law to enforce morality is justified. The author examines their arguments in some detail, and sets out to demonstrate that they fail to recognize distinction of vital importance for legal and political theory, and that they espouse a conception of the function of legal punishment that few would now share. (shrink)

The presumption of innocence (POI) requires all judges, juries, and other officials in a trial, to presume and treat any accused of criminal wrongdoing as innocent, until he or she is proven guilty. Although a POI lacks an authoritative definition, this overarching principle of procedural fairness is so robust and vital for the exercise of legal power in matters of criminal law that one rarely finds anyone questioning its standing. In this article I examine the rationale behind the (...) POI from a different perspective. The basic assumption is that this procedural standard captures the tenor of a broader principle which seeks to ensure fairness in criminal proceedings as well as in criminal law doctrine. I argue that honouring a principle of fairness is not exclusively a matter of criminal procedural law but also something that is deeply rooted in other areas of criminal law doctrine. Hence: not maintaining a principle of fairness in criminal law doctrine could lead to the POI being compromised or even undermined. In the article, I draw attention to three areas in which I believe that criminal law policies threaten a principle of fairness: criminalising remote harm, doctrine of ignorance of law and inversed presumptions of guilt. My conclusion is that some solutions to so called doctrinal problems in criminal law, are questionable and their practical consequences (on a general level) are, at least partially, equal to treating an individual (in a trial) as guilty for something for which he or she ought not to be accountable. Hence: gaining the support of a POI could thus work as principle for keeping the use of criminal law moderate and in accordance with a principle of fairness. (shrink)

The criminal law declines to punish merely for bad attitudes that are not properly manifested in action. One might try to explain this on practical grounds, but these attempts do not justify the law’s commitment to never punishing unmanifested mental states in worlds relevantly similar to ours. Instead, a principled explanation is needed. A more promising explanation thus is that one cannot be criminally culpable merely for unmanifested bad attitudes. However, the leading theory of criminal culpability has trouble (...) making good on this claim. This is the theory that an action is criminally culpable to the extent that it manifests insufficient regard for legally protected interests. The trouble is that this theory’s defenders have not adequately explained what it is for an action to manifest insufficient regard. In this paper, I aim to provide the required account of manifestation, thereby rendering the insufficient regard theory more defensible. This, in turn, allows the view to explain the broad range of doctrines that treat unmanifested mental states as irrelevant. The resulting theory of criminal culpability is both descriptively plausible and normatively attractive. Moreover, it highlights the continuity between criminal culpability and moral blameworthiness by showing how the former functions as a stripped-down analogue of the latter. (shrink)

What makes someone responsible for a crime and therefore liable to punishment under the criminal law? Modern lawyers will quickly and easily point to the criminal law's requirement of concurrent actus reus and mens rea, doctrines of the criminal law which ensure that someone will only be found criminally responsible if they have committed criminal conduct while possessing capacities of understanding, awareness, and self-control at the time of offense. Any notion of criminal responsibility based on (...) the character of the offender, meaning an implication of criminality based on reputation or the assumed disposition of the person, would seem to today's criminal lawyer a relic of the 18th Century. In this volume, Nicola Lacey demonstrates that the practice of character-based patterns of attribution was not laid to rest in 18th Century criminal law, but is alive and well in contemporary English criminal responsibility-attribution. Building upon the analysis of criminal responsibility in her previous book, Women, Crime, and Character, Lacey investigates the changing nature of criminal responsibility in English law from the mid-18th Century to the early 21st Century. Through a combined philosophical, historical, and socio-legal approach, this volume evidences how the theory behind criminal responsibility has shifted over time. The character and outcome responsibility which dominated criminal law in the 18th Century diminished in ideological importance in the following two centuries, when the idea of responsibility as founded in capacity was gradually established as the core of criminal law. Lacey traces the historical trajectory of responsibility into the 21st Century, arguing that ideas of character responsibility and the discourse of responsibility as founded in risk are enjoying a renaissance in the modern criminal law. These ideas of criminal responsibility are explored through an examination of the institutions through which they are produced, interpreted and executed; the interests which have shaped both doctrines and institutions; and the substantive social functions which criminal law and punishment have been expected to perform at different points in history. (shrink)

In this paper, we defend the general thesis that intentions are relevant not only to moral permissibility and impermissibility, but also to criminal wrongdoing, as well as a specific version of the Doctrine of Double Effect that we believe can help solve some challenging puzzles in the criminal law. We begin by answering some recent arguments that marginalize or eliminate the role of intentions as components of criminal wrongdoing [e.g., Alexander and Ferzan, Chiao, Walen ]. We (...) then turn to some influential theories that articulate a direct role for intentions [e.g., Duff, Husak ]. While we endorse the commitment to such a role for intentions, we believe that extant theories have not yet been able to adequately address certain objections or solve certain puzzles, such as that some attempt convictions require criminal intent when the crime attempted, if successful, requires only foresight, and that some intended harms appear to be no more serious than non-intended ones of the same magnitude, for example. Drawing on a variety of resources, including the specific version of the Doctrine of Double Effect we have developed in recent published work, we present solutions to these puzzles, which in turn provide mutual support for our general approach to the role of intentions and for thinking that using others as means is itself a special kind of wrongdoing. (shrink)

This essay provides an overview of the crime/tort distinction. It first investigates some of the fundamental differences between criminal law and tort law in doctrine and legal structure. It then explores some important similarities and differences in normative perspectives between the two doctrinal fields. This typology should prove analytically useful for examining some of the specific issues at the borderline of crime and torts—such as the proper scope of punitive damage liability and the question whether criminal law (...) as well as tort law should vary legal sanctions simply because of the fortuitous occurrence of harm. (shrink)

ABSTRACT Although there is much to commend in Sarch's Criminally Ignorant: Why the Law Pretends We Know What We Don't, in this piece, I invite Sarch to expand on his analysis by considering how English doctrine diverges from the US doctrine he takes as foundational, and raise some doubts by putting pressure on the theory of culpability that motivates his views on how ignorance supplies culpability. In particular, (a) I question his defence of a motive-insensitive theory of culpability, (...) (b) set out some worries with Sarch's strategy of running theories of inculpation and exculpation together, and (c) suggest that he prematurely rejects motive-based explanations of why a person who is wilfully ignorant of an inculpatory proposition when performing the actus reus of a crime is as culpable as another who does the same thing with the requisite knowledge. (shrink)

Certainly principles of criminal liability may be understood as rules or norms outlining orders or prohibitions and standing out among other norms with their weight, for legal culture, legal doctrine, etc. In such a classic approach they are norms defining basic rights and obligations in the applicable criminal law. However, is it the only possible and cognitively interesting meaning of the word “principle” in jurisprudence? From the semiotic point of view, they can occur in three forms: special-kind (...) norms, teleological directives, rules which constitute valid performance of conventional activities. In an extra-directival sense these principles may be understood as models-descriptions of shaping the system of criminal law. From a theoretical and practical point of view principles addressed to the legislator are extremely weighty—they can be called rules constructing the system of criminal liability. These all problems are discussed in the article. (shrink)