This book presents a comprehensive overview of what the criminal law would look like if organised around the principle that those who deserve punishment should receive punishment commensurate with, but no greater than, that which they deserve. Larry Alexander and Kimberly Kessler Ferzan argue that desert is a function of the actor's culpability, and that culpability is a function of the risks of harm to protected interests that the actor believes he is imposing and his reasons for acting in the (...) face of those risks. The authors deny that resultant harms, as well as unperceived risks, affect the actor's desert. They thus reject punishment for inadvertent negligence as well as for intentions or preparatory acts that are not risky. Alexander and Ferzan discuss the reasons for imposing risks that negate or mitigate culpability, the individuation of crimes, and omissions. (shrink)
When a provocateur intentionally provokes a deadly affray, the law of self-defense holds that the provocateur may not use deadly force to defend himself. Why is this so? Provocateurs are often seen as just one example of the problem of actio libera in causa, the causing of the conditions of one’s defense. This article rejects theories that maintain a one-size-fits-all approach to actio libera in causa, and argues that provocateurs need specific rules about why they forfeit their defensive rights. This (...) article further claims that provocateurs need to be distinguished from their cousins, initial aggressors, as initial aggressors engage in conduct that grounds the permissibility of the defender’s behavior whereas the provocateur’s behavior does not justify the respondent’s use of force against him. In addition, this article rejects that the basis of this forfeiture can be found in the doctrines surrounding when and why mitigation for provocation is appropriate for the respondent. Provocateurs forfeit their defensive rights for the very simple reason that they start the fight. This forfeiture occurs when they behave culpably, meaning that they subjectively appreciate that they are running the risk of causing force to be used against them and they engage in this behavior without justification or excuse. The question of when the provocateur’s behavior is justified is incredibly complex. It requires analysis of when it is that one is justified in increasing the risk of another’s wrongdoing. Any analysis of this justification must take seriously the liberty rights of the potential provocateur to engage in otherwise permissible behavior. Moreover, the determination of whether the provocateur is justified will turn on whether the later acts that he puts into motion are themselves justified. Thus, when Charles Bronson in the movie Death Wish presents himself as a victim so that muggers will attack him, the justifiability of his conduct in appearing as a vulnerable victim will turn on whether he is entitled to engage in this conduct, intending to later defend himself. This article argues that in Death Wish-type cases, the reason that the provocateur is not justified is because he becomes a vigilante, thereby usurping the role of the state and undermining rule of law values. (shrink)
This chapter examines the moral justifiability of “stand your ground” laws. First, it sets forth the parameters of self-defense as understood in the philosophical literature. Next, it focuses on the necessity limitation and questions whether this limitation can be defensibly weakened to accommodate SYG laws. Finding no comfort for SYG statutes in a weakened necessity limitation, the chapter turns to the proportionality constraint and examines approaches that increase the interests that may permissibly be defended as well as approaches that abandon (...) proportionality altogether. Finally, this chapter maintains that the most perspicuous lens through which to view SYG laws is that of law enforcement because what SYG laws actually do is place citizens in the role of police. The justifiability of such enforcement authority turns, then, on two further questions. It must be appropriate for citizens to serve this function. But second, it must be appropriate for the state to stand its ground. (shrink)
In The Realm of Criminal Law, Antony Duff argues that the criminal law’s realm is bounded by territory. This is because a polity decides what it cares about in crafting its civic home, and it extends its rules and hospitality to guests. I question whether the most normatively attractive conception of a Duffian polity would be bounded by territory, or whether it would exercise far more extensive jurisdiction over its citizens wherever in the world they may be and over harm (...) to its citizens/interests wherever in the world the attacks occur. (shrink)
When the state aims to prevent responsible and dangerous actors from harming its citizens, it must choose between criminal law and other preventive techniques. The state, however, appears to be caught in a Catch-22: using the criminal law raises concerns about whether early inchoate conduct is properly the target of punishment, whereas using the civil law raises concerns that the state is circumventing the procedural protections available to criminal defendants. Andrew Ashworth has levied the most serious charge against civil preventive (...) regimes, arguing that they evade the presumption of innocence. After sketching out a substantive justification for a civil, preventive regime, I ask what Ashworth’s challenge consists in. It seems that there is broad disagreement over the meaning and requirements of the presumption of innocence. I thus survey the myriad possibilities and extract two claims that have potential bearing on preventive regimes. One claim is that of substantive priority—the criminal law comes first when assessing blame. This is the claim at the root of objections to pretrial detention based on consideration of the crime charged. The second strand of argument is one of procedural symmetry. This is the concern that with respect to citizen/state relations, certain procedures are required, including, for example, proof beyond a reasonable doubt as to the offense or defense. Having extracted these claims, I then assess their applicability with respect to the preventive regime defended. I first conclude that the criminal law must share blame and censure with other fora, and thus, the criminal law only has substantive priority when criminal proceedings have been instituted. I then survey whether procedural symmetry is required, specifically assessing whether the preventive regime I defend requires proof beyond a reasonable doubt. My tentative conclusion is that proof beyond a reasonable doubt is warranted. (shrink)
Sometimes a police officer can only stop a fleeing suspect by striking or shooting him. When is it morally justified to use such force rather than let the suspect go? Beginning with deadly force, this article disentangles key considerations. First, it distinguishes justifications for force that are premised on a liability or forfeiture from justifications premised upon lesser-evils considerations. Second, it unpacks the distinct interests the state might claim in subduing suspects, from adjudicating suspects, to punishing criminals, to preventing crime. (...) Drawing these distinctions shows that the state’s interests are weaker than they first appear, rarely sufficient to outweigh the individual’s strong interests against force, and many suspects are not liable to the force to which they are subjected. Ultimately, we conclude (perhaps unsurprisingly) many legally permissible uses of force are morally unjustified. Finally, we turn to ways our analysis can be extrapolated to nondeadly force. (shrink)
In The Ends of Harm, Victor Tadros claims that the general justifying aim of the criminal law should be general deterrence. He also takes seriously that we cannot use people as a means, and thus he argues that we may only punish people in the name of general deterrence who have a ‘duty’ to suffer. Tadros claims that this duty arises as follows: An offender initially has a duty not to harm the victim. If the offender violates that duty, the (...) offender still has a duty to stop the harm from occurring. And if the harm does occur, then the offender has a duty to rectify that harm. This duty to rectify, argues Tadros, requires the defendant not only to compensate the victim but also to protect the victim to the extent that he would have been able to have been harmed to prevent the threat from occurring. Tadros further advances intricate arguments for why the state may therefore punish the offender to protect other potential victims to the extent of the offender’s duty to rectify. This symposium contribution seeks to explore three problems with Tadros’ analysis, ultimately arguing that Tadros’ theory fails on its own terms. First, attempts present a substantial problem for Tadros’ regime because attempts do not give rise to duties to prevent harm because there is no harm to be prevented. Tadros’ attempt to account for attempts, as completed offenses of diversions of security resources, ultimately leads to punishments that bear little resemblance to the crime attempted. Such a wildly counterintuitive result creates problems for a regime premised on general deterrence, which must be understood and respected. Second, Tadros’ regime will often exempt the rich from suffering criminal punishment. Tadros claims that duties to prevent harms from occurring are only enforceable when compensation will be inadequate. However, affluent offenders may be able to fully compensate. Moreover, since the scope of the duty to suffer will be determined by what remains of the duty after the victim is compensated, affluent offenders will be able to compensate more and thereby suffer less. Again, the actual sentences will thereby bear little resemblance to the rationale for criminalization, thus threatening the deterrent message of the law. Moreover, a system that exacerbates distributive inequalities will not achieve public respect. Third, Tadros cannot justify taking the duty that the defendant owes to the victim and forcing the victim to transfer this asset to the state. In his quest to articulate a theory that does not impermissibly use defendants, he ultimately endorses a theory that impermissibly uses their victims. He thus fails to achieve the very goal he sets for himself, which is to achieve general deterrence without impermissibly using anyone. (shrink)
What makes it permissible to reach out to hold someone’s hand on a first date, or to rub a friend’s back when she is crying? This paper, a contribution to the special issue on Doug Husak, argues that conventions, context, and relationships play a role in shifting normative boundaries, such that the default rule becomes that it is permissible to touch someone until she dissents. Part I of this paper focuses on convention-type cases, contrasting dates with the intentional touchings that (...) occur on crowded streets or while playing football. Part II then addresses the range of normative justifications that track these different cases. Part III adds a different way that dissent-sensitive permissions can arise—from relationships and common ground. Part IV unearths the underlying rights-structure that my view presupposes and returns to the question of whether the theory I have on offer is one of consent. Part V argues that this approach, that these are alterations of permissibility, is superior to the view that conventions only impact the actor’s blameworthiness by rendering his belief reasonable. Part VI raises questions of whether our understanding of consent dictates our understanding of dissent. (shrink)
Criminal theorists struggle to account for the “totality principle”—the idea that no matter how many small crimes you commit, your punishment should not exceed that for a more serious offense. Andrew Ashworth, for instance, argues that “overall proportionality” should be preserved but that this is a “pragmatic” solution. This paper argues that a retributivist can accept overall proportionality without abandoning her retributivism. I offer two lines of defense. The first is to show that the unit that we are aggregating may (...) be more complex than first appears. The second relies on insights from the headaches versus lives literature, and how we should rescue one person dying before preventing one million people from headaches. The harms that we impose on others, and the harms that defendants suffer because of punishment, do not exist on one single scale. Hence, the true problem, I maintain, is not how culpability functions, but how our particular mode of punishment does. When we only have one primary mechanism to punish —put people in prison—then aggregating offenses appears as though it must quickly lead to numerous acts of littering being punished more than arson. With a more nuanced punitive response, we can punish minor offenses every time without surpassing the kinds of punishment we impose on more significant offenses. (shrink)
Iconoclasts? Who, Us? A Reply to Dolinko Content Type Journal Article Category Original Paper Pages 1-7 DOI 10.1007/s11572-012-9143-3 Authors Larry Alexander, San Diego, CA, USA Kimberly Kessler Ferzan, Camden, NJ, USA Journal Criminal Law and Philosophy Online ISSN 1871-9805 Print ISSN 1871-9791.
This handbook consists of essays on contemporary issues in criminal law and their theoretical underpinnings. Some of the essays deal with the relationship between morality and criminalization. Others deal with criminalization in the context of specific crimes such as fraud, blackmail, and revenge pornography. The contributors also address questions of responsible agency such as the effects of addiction or insanity, and some deal with punishment, its mode and severity, and the justness of the state’s imposition of it. These chapters are (...) authored by some of the most distinguished scholars in the fields of applied ethics, criminal law, and jurisprudence. (shrink)
Perhaps more than any other scholar, Michael Moore has argued that there are deep and necessary connections between metaphysics, morality, and law. Moore has developed every contour of a theory of criminal law, from philosophy of action to a theory of causation. Indeed, not only is he the central figure in retributive punishment but his moral realist position places him at the center of many jurisprudential debates. Comprised of essays by leading scholars, this volume discusses and challenges the work of (...) Michael Moore from one or more of the areas where he has made a lasting contribution, namely, law, morality, metaphysics, psychiatry, and neuroscience. The volume begins with a riveting contribution by Heidi Hurd, wherein she takes an unadorned and unabashed look at the man behind this monumental body of work, full of both triumphs and sadness. A number of essays focus on Moore's view of the purpose and justification of the criminal law, specifically his endorsement of retributivism and legal moralism. The book then addresses Moore's work in the various aspects of the general part of the criminal law, including Moore's position on how to understand criminal acts for double jeopardy purposes, Moore's claim that accomplice liability is superfluous, and Moore's views about the culpability of negligence, as well as the relationship between that view and proximate causation. Furthermore, the subject of defenses in criminal law is addressed, including self-defense, and also the intersection of psychiatry, psychology, cognitive neuroscience, and the criminal law. Also discussed are features of morality, and Moore's work in general jurisprudence. Finally, Moore concludes the volume with an essay that defends and delineates the features of his views. (shrink)
From the American Law Institute to college campuses, there is a renewed interest in the law of rape. Law school faculty, however, may be reluctant to teach this deeply debated topic. This article begins from the premise that controversial and contested questions can be best resolved when participants understand the conceptual architecture that surrounds and delineates the normative questions. This allows participants to talk to one another instead of past each other. Accordingly, in this article, we begin by diffusing two (...) non-debates: the apparent conflict created when speakers use “consent” to mean two different things and the question of whether rape law ought to be formulated in terms of consent or force. From here, we turn to the conceptual apparatuses that surround the normative questions of freedom from force, knowledge, and capacity. Here, we suggest how better understanding these concepts can frame the underlying discussions as to what sorts of coercion undermine consent, what kinds of deception invalidate consent, and when the victim is too incapacitated to consent. Finally, we turn to different formulations of consent, demonstrating that one conception better captures the harm of rape but that other formulations may better protect victims. We show how clarifying these questions allows discussants to see why different formulations are valuable and to debate the best all-things-considered formulation. Although this article is framed as a question of how to think like lawyers about rape, its ambition is to set forth a framework that is useful to reformers as well. (shrink)
This brief festschrift introduction does not attempt to review and characterize Michael Moore’s extraordinary and influential immense body of scholarship at the intersections of law, morality, and metaphysics. This is done most ably by Heidi Hurd in the following chapter. Here we simply describe each of the contributions to this volume as they relate to the body of Moore’s work, virtually every aspect of which is addressed by the various authors. The introduction concludes with personal last words by the editors (...) about their history with Moore and his influence on them and others. Concrete personal examples are given. The introduction concludes with a description of the genesis of the volume. (shrink)
Adil Ahmad Haque argues that before attacking, combatants must reasonably believe that the target is a combatant and the gains must be sufficiently great so as to be in compliance with the doing/allowing distinction. I reformulate the threshold as preponderance of the evidence, because reliance on beliefs raises conceptual and pragmatic problems, and this balance appropriately considers the values that should be traded off, while bracketing aggregation of persons. I further argue that including doing/allowing above the threshold is impermissible double-counting, (...) and even if not, it is entitled to little weight when combatants owe each other associative duties. (shrink)
This chapter contains sections titled: The Conventional View of Intentions The Challenge of Inseparable Effects Intentions and the Law: Type/Token Problems Intentions and the Law II: Matching Intentions with Results Beyond Motivational Significance: A Full‐Bodied View of Intentions and Representational Content Intentions and the Law III : Applying the Broader View of Intentions Beyond Intention? References.
Many criminal law scholars have criticized the responsible corporate officer doctrine as a form of strict and vicarious liability. It is neither. It is merely a doctrine that supplies a duty in instances of omissions. Siding with Todd Aagaard in this debate, I argue that a proper reading of the cases yields that the responsible corporate officer doctrine is just duty supplying, and does not allow for strict liability when the underlying statute requires mens rea. After analyzing Dotterweich, Park, and (...) their progeny, I probe the depths of this duty-supplying doctrine, including to whom the duty is owed, whether the duty is grounded in statute, cause of peril, or contract, and what the content of the duty is. Although the responsible corporate officer doctrine unveils questions we may have about duty generally, it is no more problematic than other duty-supplying doctrines in the criminal law. (shrink)
This commentary on Michael Cahill’s Grading Arson argues that Cahill’s analysis inevitably leads to three possible conclusions. First, arson does not belong in criminal codes. Second, crimes of manner do not belong in criminal codes. And, third, the special part needs serious reconsideration. Although Cahill is reticent to draw any of these conclusions, this commentary urges Cahill to embrace all three.
This introduction to this handbook begins with the “big picture” questions about the relationship between morality and criminalization, in terms of both whether the law should reflect morality and how we should deal with uncertainty about what morality requires. From here, it turns to the wide-ranging criminalization questions presented by many of the entries, and it juxtaposes top-down and bottom-up strategies. It then draws connections between criminalization questions. Next, the introduction turns to the notions of responsible agency upon which just (...) punishment depends. The questions of who counts as a legal person for punishment, when can a person be held responsible, and how particular features of a person’s psychology or circumstances affect just punishment are considered. Finally, the chapter concludes by examining punishment and the role of the state, asking about the mode and amount of punishment, as well as the justness of the state’s imposition of punishment. (shrink)