The wrongness of rape -- Rationality and the rule of law in offences against the person -- Complicity and causality -- In defence of defences -- Justifications and reasons -- The gist of excuses -- Fletcher on offences and defences -- Provocation and pluralism -- The mark of responsibility -- The functions and justifications of criminal law and punishment -- Crime : in proportion and in perspective -- Reply to critics.

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

This volume contains eleven previously published essays on criminal law together with a new "Reply to Critics" by the Professor of Jurisprudence at Oxford, John Gardner. The principal themes of the essays, covering offences, defences, and punishment, are summarized in this review, which also highlights areas of controversy and various lines of criticism.

Most philosophers of criminal law agree that between criminal offences and defences there is a significant, substantial difference. It is a difference, however, that has proved hard to pin down. In recent work, Duff and others have suggested that it mirrors the distinction between criminal answerability and liability to criminal punishment. Offence definitions, says Duff, are—and ought to be—those action-types ‘for which a defendant can properly be called to answer in a criminal court, on pain of conviction and (...) condemnation if she cannot offer an exculpatory answer’; and defences are ‘exculpatory answers’ that ‘block the transition from responsibility to liability’. I criticise this answerability-based account of the offence/defence divide. It is descriptively false, I claim, as well as normatively unappealing. (shrink)

In this long-awaited book, Antony Duff offers a new perspective on the structures of criminal law and criminal liability. His starting point is a distinction between responsibility (understood as answerability) and liability, and a conception of responsibility as relational and practice-based. This focus on responsibility, as a matter of being answerable to those who have the standing to call one to account, throws new light on a range of questions in criminal law theory: on the question of criminalisation, which can (...) now be cast as the question of what we should have to answer for, and to whom, under the threat of criminal conviction and punishment; on questions about the criminal trial, as a process through which defendants are called to answer, and about the conditions (bars to trial) given which a trial would be illegitimate; on questions about the structure of offences, the distinction between offences and defences, and the phenomena of strict liability and strict responsibility; and on questions about the structures of criminal defences. The net result is not a theory of criminal law; but it is an account of the structure of criminal law as an institution through which a liberal polity defines a realm of public wrongdoing, and calls those who perpetrate (or are accused of perpetrating) such wrongs to account. (shrink)

In this paper, the principal objections to unconditional forgiveness are canvassed, primarily that it fails to take wrongdoing seriously enough, and that it displays a lack of self-respect. It is argued that these objections stem from a mistaken understanding of what forgiveness actually involves, including the erroneous view that forgiveness involves some degree of condoning of the offence, and is incompatible with blaming the offender or punishing him. Two positive reasons for endorsing unconditional forgiveness are considered: respect for persons and (...) human solidarity; and it is argued that the latter provides more plausible grounds for it than the former. (shrink)

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

The paper begins with the plausible view that criminal responsibility should track moral responsibility, and explains its plausibility. A necessary distinction is then drawn between liability and answerability as two dimensions of responsibility, and is shown to underpin the distinction in criminal law between offences and defences. This enables us to distinguish strict liability from strict answerability, and to see that whilst strict criminal liability seems inconsistent with the principle that criminal responsibility should track moral responsibility, strict criminal (...) answerability is not. We must ask, therefore, whether, when and why strict criminal responsibility is unacceptable. (shrink)

Should a legal plea of self- or third-party defence include an ‘awareness component’ that requires that the actor was aware of the justificatory facts at the time of action? Some theorists argue that in cases of so-called unknowing defence, where an actor in fact averts an otherwise unavoidable danger to himself or another person although unaware at the time of action that this is what he is doing, the objective facts alone should allow a plea of self- or third-party defence. (...) Cases of unknowing defence raise issues that are highly significant to the nature of justification and liability. In this article I reject some common approaches to this issue and I offer an account of why acts of unknowing defence are appropriately subject to criminal liability for the complete offence. (shrink)

This article explores the construction of offences as ‘accidental’ in police-suspect interactions. The data comprise audio-recorded investigative interviews, which were analysed using conversation analysis. In these interviews, suspects often do not explicitly state the nature of their defence when answering police officers’ questions; instead, suspects’ defensive practices or techniques are embedded in the narrative accounts they give of what happened, thus exhibiting rather claiming their ‘innocence’. My focus here is on a particular type of defence, namely, one in which (...) suspects portray an event as having been ‘accidental’. I show that this defence of ‘accident’ is associated with several discourse features including: building a plausible and trivial context in which the untoward incident occurred, describing the untoward action or series of actions, using impersonal or agentless constructions, and representing the disproportionality between the putative victim’s reaction and the aggressor’s untoward conduct. The accountability of these descriptions, however, does not rely on one unique feature, but rather on suspects’ ability to combine these features in such a way that each establishes the grounds for others. (shrink)

This paper criticizes the assumption, omnipresent in contemporary philosophy of religion, that a perfectly good and loving God would wish to confer on finite persons free will. An alternative mode of Divine-human relationship is introduced and shown to be as conducive to the realization of value as one involving free will. Certain implications of this result are then revealed, to wit, that the theist's free will defence against the problem of evil is unsuccessful, and what is more, that free will, (...) if it exists, provides positive support for atheism. (shrink)

The Model Penal Code’s ‘De Minimis’ provisions (§ 2.12) cover different kinds of case in which, for reasons of equity, a prosecution should be dismissed. An exploration of these different cases illuminates some general issues about the structure of the criminal process, and about the processes of criminalization. These include the significance of the difference between dismissing a case and acquitting the defendant, and of the distinction between offences and defences; whether criminal offences should always be so (...) defined that they specify at least a pro tanto wrong, or may sometimes legitimately specify only a prima facie wrong – and whether this is consistent with the presumption of innocence; what kinds of conduct we can properly be expected to answer for in a criminal court; and the proper division of responsibilities between legislatures, prosecutors and courts in determining what kinds of conduct are to be defined and treated as criminal wrongs. (shrink)

The UK has been slack in fulfilling its international obligations regarding human trafficking. The UK Modern Slavery Act 2015 has apparently nothing to say about the demand for women trafficked into prostitution, although it addresses the demand for other forms of trfficking though the supply chain provisins in the Act. The UK has disappointed many in condoning prostitution, as Lady Butler-Sloss describes as 'one of the longest standing industries'. However it is one of the longest-standing forms of exploitation. The Act (...) instead, has given much importance to modern -day slavery. An effective way of tackling demand for prostitution and the attendant exploitation would be to make it an offence to purchase someone for sex. Yet perhaps the point is that to curb modern-day slavery is to curb prostitution and pornography, through curbing the supply side. However the UK hasragged its feet over many years, especially when one considers that Internet pornography brings in over £4 billion annually to the UK Gross Domestic Product. (shrink)

Faced with the inaction of liberal democracies to effectively tackle global warming, many climate activists engage in forms of protests that involve committing minor criminal offences. They seek to shape official decisions on climate policies by resorting to civil disobedience. Some of these activists, rather than accepting punishment, have successfully claimed to be acting in a justified manner by invoking the necessity defence. The aim of this article is to show that, within the framework of representative democracies guided by (...) the rule of law, the climate necessity defence must be rejected, since such protests do not meet the ‘non-legal alternatives’ requirement. This does not mean, however, that protesters should be punished as common offenders. Their acceptance of responsibility and political motivation should be taken into account as a mitigating factor at sentencing. (shrink)

Many liberal democracies have legal restrictions on nudism. This article argues that when public nudity does not pose a health threat, such restrictions are unjust. To vindicate this claim, I start by showing that there are two weighty interests served by the freedom to be naked in public. First, it promotes individual well-being; not only can nudist activities have great recreational value, recent studies have found that exposure to non-idealised naked bodies has a positive impact on body image, and, ultimately, (...) on life satisfaction. Second, public nudity has expressive value; apart from being a constitutive element of various spiritual and religious worldviews, public nudity is frequently used to protest social and political evils. As I go on to argue, the reasons for abolishing current anti-nudist laws that stem from these interests are not overridden, let alone cancelled, by the offence that public nudity might cause. Indeed, whereas my principal aim is to defend the freedom to be publicly naked when this poses no health threat, I will contend that states should recognise this liberty as a distinct legal right rather than try to subsume it under existing rights or secure it simply by excluding non-sexual, non-exhibitionist public nudity from existing laws against public indecency, sexual exhibition, and disorderly conduct. (shrink)

Offences and Defences is an outstanding collection of eleven of John Gardner's previously published papers in the philosophy of criminal law. I briefly examine his views on five central issues: his claims about basic responsibility and whether it should be construed as relational; his positions on agent neutrality; his arguments about whether moral and criminal wrongs are typically strict; his thoughts about the structure of defences, and, finally, what his account of rape reveals about the content of (...) the harm principle. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Socrates' Trial and Conviction of the Jurors in Plato's ApologyDougal BlythI am going to argue in this paper that, in the three speeches constituting his Apology of Socrates, Plato presents the judicial proceedings that led to Socrates' execution as having precisely the opposite significance to their superficial legal meaning. This re-evaluation will lead to some reflections on the politics of Socrates' defence, and, similarly, on Plato's own aims in (...) writing the Apology. I want to show not only that the trial as portrayed demonstrates an inevitable dereliction of duty by the democratic jury, but also, more interestingly, that throughout the proceedings Socrates understands the meaning of the trial precisely in terms of his anticipation of the jurors' judicial incapacity.In the prooimion to his defence speech, Socrates requests that the jurors ignore his manner of speaking and concentrate on whether his case is just, "since this is a judge's virtue (), while that of a rhêtôr is to speak the truth" (18a5-6, cf. 35c2-5). We can gloss the expression "a judge's aretê" in this context as his function, or responsibility.1 Socrates claims that he, himself, fulfills his own responsibility as a defendant to tell the truth (17b4-c4, 33c1-2, cf. 34b5, 35b9-c2) in a speech that asserts his exemplary piety in Apollo's service and his beneficial influence on the Athenian youth. But if, in claiming that he is innocent of the charge, Socrates does tell the truth, then those jurors who thereupon convict him of impiety and corruption, and subsequently sentence him to death, have failed in their duty to judge rightly.My claim is that Socrates sees the trial as a test of the jurors' abilities. It is characteristic of Socrates to test people regarding their concern for virtue and justice, a habit to which he devotes extended discussion during his defence, even dramatising it provocatively in a central passage (29d7-e5) that I aim shortly to analyse in detail. Moreover, Socrates specifically withholds from the jury the title of dikastai or judges; he does finally award the title in his address following the sentence, but only to those who have voted [End Page 1] to acquit him (40a2-3).2 The possibility thus emerges that Socrates has treated the legal proceedings all along as a moral (and intellectual) test, or trial, of the empanelled jurors themselves, to see whether they are capable of the legal function to which they have been allotted. In that case, Socrates is putting on trial, not just those individual citizens, but the very legal system of democratic Athens.Socratic irony and truthfulnessBefore considering Socrates' own explicit judgement during those final remarks on the jurors' moral offence and punishment, I should first address briefly the issue of Socrates' irony. In the past, some writers have asserted that this irony involves him in not telling the truth about himself during his defence, in which case the jury might well have been justified in convicting him. Actually, there does seem to be a consensus among the more extended treatments of the Apology that have emerged during the last decade, at least on the point that Plato presents Socrates as committed to making as sincere an attempt at a defence of his case as is consistent with his philosophical commitment to virtue, and so to telling the truth.3I shall not re-argue this point in detail, but shall take it to be secured by two basic considerations: consistency with the Crito would require Socrates to recognise a legal obligation to make a sincere attempt at defence while his obligation to Apollo to continue his mission in Athens if possible would motivate that attempt with the goal of acquittal.4 Instead, I want to show what role irony does have in Socrates' defence, given that his principled law-abidingness requires him to attempt to persuade the jury, in accordance with truth and justice, that he is innocent (cf. 19a6-7, 18a7-b1, 18e5).Where Socrates acknowledges the obligation to defend himself, he remarks on the difficulty he faces, a difficulty that has resulted from the slander to which he has long... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Socrates' Trial and Conviction of the Jurors in Plato's ApologyDougal BlythI am going to argue in this paper that, in the three speeches constituting his Apology of Socrates, Plato presents the judicial proceedings that led to Socrates' execution as having precisely the opposite significance to their superficial legal meaning. This re-evaluation will lead to some reflections on the politics of Socrates' defence, and, similarly, on Plato's own aims in (...) writing the Apology. I want to show not only that the trial as portrayed demonstrates an inevitable dereliction of duty by the democratic jury, but also, more interestingly, that throughout the proceedings Socrates understands the meaning of the trial precisely in terms of his anticipation of the jurors' judicial incapacity.In the prooimion to his defence speech, Socrates requests that the jurors ignore his manner of speaking and concentrate on whether his case is just, "since this is a judge's virtue (), while that of a rhêtôr is to speak the truth" (18a5-6, cf. 35c2-5). We can gloss the expression "a judge's aretê" in this context as his function, or responsibility.1 Socrates claims that he, himself, fulfills his own responsibility as a defendant to tell the truth (17b4-c4, 33c1-2, cf. 34b5, 35b9-c2) in a speech that asserts his exemplary piety in Apollo's service and his beneficial influence on the Athenian youth. But if, in claiming that he is innocent of the charge, Socrates does tell the truth, then those jurors who thereupon convict him of impiety and corruption, and subsequently sentence him to death, have failed in their duty to judge rightly.My claim is that Socrates sees the trial as a test of the jurors' abilities. It is characteristic of Socrates to test people regarding their concern for virtue and justice, a habit to which he devotes extended discussion during his defence, even dramatising it provocatively in a central passage (29d7-e5) that I aim shortly to analyse in detail. Moreover, Socrates specifically withholds from the jury the title of dikastai or judges; he does finally award the title in his address following the sentence, but only to those who have voted [End Page 1] to acquit him (40a2-3).2 The possibility thus emerges that Socrates has treated the legal proceedings all along as a moral (and intellectual) test, or trial, of the empanelled jurors themselves, to see whether they are capable of the legal function to which they have been allotted. In that case, Socrates is putting on trial, not just those individual citizens, but the very legal system of democratic Athens.Socratic irony and truthfulnessBefore considering Socrates' own explicit judgement during those final remarks on the jurors' moral offence and punishment, I should first address briefly the issue of Socrates' irony. In the past, some writers have asserted that this irony involves him in not telling the truth about himself during his defence, in which case the jury might well have been justified in convicting him. Actually, there does seem to be a consensus among the more extended treatments of the Apology that have emerged during the last decade, at least on the point that Plato presents Socrates as committed to making as sincere an attempt at a defence of his case as is consistent with his philosophical commitment to virtue, and so to telling the truth.3I shall not re-argue this point in detail, but shall take it to be secured by two basic considerations: consistency with the Crito would require Socrates to recognise a legal obligation to make a sincere attempt at defence while his obligation to Apollo to continue his mission in Athens if possible would motivate that attempt with the goal of acquittal.4 Instead, I want to show what role irony does have in Socrates' defence, given that his principled law-abidingness requires him to attempt to persuade the jury, in accordance with truth and justice, that he is innocent (cf. 19a6-7, 18a7-b1, 18e5).Where Socrates acknowledges the obligation to defend himself, he remarks on the difficulty he faces, a difficulty that has resulted from the slander to which he has long... (shrink)

Many liberal democracies have legal restrictions on nudism. This article argues that when public nudity does not pose a health threat, such restrictions are unjust. To vindicate this claim, I start by showing that there are two weighty interests served by the freedom to be naked in public. First, it promotes individual well-being; not only can nudist activities have great recreational value, recent studies have found that exposure to non-idealised naked bodies has a positive impact on body image, and, ultimately, (...) on life satisfaction. Second, public nudity has expressive value; apart from being a constitutive element of various spiritual and religious worldviews, public nudity is frequently used to protest social and political evils. As I go on to argue, the reasons for abolishing current anti-nudist laws that stem from these interests are not overridden, let alone cancelled, by the offence that public nudity might cause. Indeed, whereas my principal aim is to defend the freedom to be publicly naked when this poses no health threat, I will contend that states should recognise this liberty as a distinct legal right rather than try to subsume it under existing rights or secure it simply by excluding non-sexual, non-exhibitionist public nudity from existing laws against public indecency, sexual exhibition, and disorderly conduct. (shrink)

The article offers an Aristotelian analysis of emotion-based defences in criminal law: someone who commits an offence is entitled to an excuse if she was motivated by a justifiably aroused and strongly felt emotion that gave her good reason to commit the offence and that might have destabilised the practical rationality even of a ‘reasonable’ person. This analysis captures the logical structure of duress and provocation as excuses—and also shows why provocation is controversial as even a partial defence. This (...) pattern of analysis is then applied to compassion as a motivation for assisting another’s death, in the light of some recent developments in English criminal law’s treatment of assisting suicide: even if we accept that such assistance cannot be justified, we can see how compassion can ground an excuse, and make sense of the Director of Public Prosecution’s recently published Policy for dealing with cases of assistin.. (shrink)

The Racial and Religious Hatred Act 2006 represents a significant development in UK law. It extends the offence of incitement to racial hatred set out in the Public Order Act 1986 to make it also an offence to stir up hatred against persons on religious grounds. As the most celebrated liberal thinker of the nineteenth century, J.S. Mill might be expected to offer some lessons about the possible dangers of this sort of legislation. A Millian response to the 2006 Act (...) is developed here by first applying Mill’s famous defence of free speech to the Lords amendments to the Racial and Religious Hatred Bill 2005 and then by looking at potential cases in which even freedom of expression loses its immunity when this is necessary to prevent harm to others. Three versions of the harm‐prevention justification for liberty‐limiting restrictions are assessed and it is argued that the most promising version is the claim that it may be permissible to punish incitement to racial and religious hatred not so much because it is itself a kind of harm but by virtue of the acts of discrimination, violence and injustice that are more likely to occur within a climate of hatred. Ultimately, however, this rationale must be weighed against what is, for Mill, the special value of free speech and may in the end justify intervention in only the most acute cases. (shrink)

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

The purpose of this paper is to discuss and to relate to each other two topics: the admissibility of ignorance and mistake of fact as defences against negligence in crime; and the inadmissibility of ignorance and mistake of law as defences against criminal charges. I am in not concerned at all with torts negligence, only with criminal offences which can be committed negligently, where negligence suffices for liability, as in the law of homicide. This produces an untidy (...) classification of elements, one or other of which is needed to provide the required mens rea : intention, knowledge, recklessness and negligence. It is untidy, because the last does not belong on the same list as the other three, each of which can appropriately be called a state of mind in what we might say to be a positive sense, for each of them includes some degree of awareness of and/or attitude to relevant facts. If negligence is to be called a state of mind, it is so in a very stretched and negative way: to be told that a person was not attending to, thinking of or noticing something that he should have been is to be given some information, of a negative sort, about his state of mind, but it tells us very little, for it eliminates only one of an unlimited range of states of mind. His not attending, noticing, etc., is equally compatible with his daydreaming and with his concentrating hard on something else. If negligence requires inadvertence, as is commonly maintained, then there was a state of mind which the agent should have been in but was not; if, as I would argue, it does not require inadvertence, then there was a state of mind which the agent should have been in, and maybe he was not in it, maybe he was in it. would not require it; the definition runs, ‘a person is negligent if he fails to exercise such care, skill or foresight as a reasonable man in his situation would exercise’. However, that is only a proposal; at present advertent negligence is rare in criminal law, although common in torts.) On this view, the questions are whether his performance fell below scratch, what are to be the excusing conditions for such a performance, and if the answer to is yes, whether his performance was covered by the excusing conditions. (shrink)

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

Corporate behaviour is often regulated through the criminal law by means of reverse onus offences. Such offences are alleged to involve violations of the Presumption of Innocence. Such allegations almost always assume natural persons as defendants. The arguments supporting reverse onus offences are typically instrumental, to do with the importance of the social goals promoted and the ease of proof. The Presumption of Innocence is taken to be an autonomy right of natural persons and so not subject (...) to being sidelined for reasons of law enforcement expediency. Corporations, however, are not natural persons: they have no autonomy right not to be treated as means. It may well be, then, that reverse onus offences are justified in the case of corporate defendants. I argue that the Presumption is not violated by such offences in the case of corporate defendants. I develop a broad concept of the criminal justice system as an allocative system, and argue that reverse onus offences properly allocate the burden of proof for corporations. Specifically, I argue that the normative demand for legal innocence is sufficiently met by the availability of a due diligence defence; that the responsibility of corporations when prohibited harms occur is properly a form of outcome-responsibility; and that taking into account issues of reciprocity, legitimacy and power reverse onus offences justly allocate the burden of proof in the case of corporate defendants. (shrink)

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

The purpose of this paper is to discuss and to relate to each other two topics: the admissibility of ignorance and mistake of fact as defences against negligence in crime; and the inadmissibility of ignorance and mistake of law as defences against criminal charges. I am in not concerned at all with torts negligence, only with criminal offences which can be committed negligently, where negligence suffices for liability, as in the law of homicide. This produces an untidy (...) classification of elements, one or other of which is needed to provide the required mens rea : intention, knowledge, recklessness and negligence. It is untidy, because the last does not belong on the same list as the other three, each of which can appropriately be called a state of mind in what we might say to be a positive sense, for each of them includes some degree of awareness of and/or attitude to relevant facts. If negligence is to be called a state of mind, it is so in a very stretched and negative way: to be told that a person was not attending to, thinking of or noticing something that he should have been is to be given some information, of a negative sort, about his state of mind, but it tells us very little, for it eliminates only one of an unlimited range of states of mind. His not attending, noticing, etc., is equally compatible with his daydreaming and with his concentrating hard on something else. If negligence requires inadvertence, as is commonly maintained, then there was a state of mind which the agent should have been in but was not; if, as I would argue, it does not require inadvertence, then there was a state of mind which the agent should have been in, and maybe he was not in it, maybe he was in it. would not require it; the definition runs, ‘a person is negligent if he fails to exercise such care, skill or foresight as a reasonable man in his situation would exercise’. However, that is only a proposal; at present advertent negligence is rare in criminal law, although common in torts.) On this view, the questions are whether his performance fell below scratch, what are to be the excusing conditions for such a performance, and if the answer to is yes, whether his performance was covered by the excusing conditions. (shrink)

Charles Griswold’s 2007 book Forgiveness argues that genuine forgiveness of an unexcused, unjustified and unignored offence must be normgoverned and conditional. In the same way that gift-giving is governed by norms of appropriateness, so too is forgiveness; and the appropriateness of forgiving is centrally dependent on the offender’s repentance. In response, I claim that genuine forgiveness must always be elective and unconditional, and therefore genuinely unpredictable, no matter how much – or how little – the offender repents. I consider and (...) reject one defence of unconditional forgiveness, that of Garrard and McNaughton. I then develop my own account, which builds on Bernard Williams’ notion of practical necessity. (shrink)

This study applies functional theory of campaign discourse proposed by William Benoit for United States political debates and the theory of illocutions to the televised governorship debate of Lagos State. As opposed to other studies that have applied it to the United States, Finland, etc., it applies this theory to an African political debate. It asserts as against others that candidates distinguish themselves from their opponents using the major functions of campaign discourse in a reversed order, that is, attacks, (...) class='Hi'>defences and acclaims rather than acclaims, attacks and defences which is popular in US debates. Furthermore, it also examines how attacks are pragmatically encoded by candidates in Lagos State debate, what illocutionary forms candidates utilize when informing voters of an opponent’s potential costs/weakness. Thus, this current study can be viewed as a comparative study that aims to unravel a sequence present in Nigerian debate different from what is obtainable in US political debates. (shrink)

This article examines the regalist reforming critique and the curial defence of papal temporal dominion in the eighteenth-century Italian peninsula. The discussion examines the little-explored links between the justification for papal supremacy in the Church and the historico-theological defence of its theocratic rule. The refusal of the Curia to grant reform gave rise to a radical reforming movement which produced some astoundingly bitter anti-curial polemics little known outside Italian studies, but of some significance in the history of political thought.

David Miller elegantly and provocatively reformulates critical rationalism—the revolutionary approach to epistemology advocated by Karl Popper—by answering its most important critics. He argues for an approach to rationality freed from the debilitating authoritarian dependence on reasons and justification. "Miller presents a particularly useful and stimulating account of critical rationalism. His work is both interesting and controversial... of interest to anyone with concerns in epistemology or the philosophy of science." —Canadian Philosophical Reviews.

This book provides a thoroughly worked out and systematic presentation of an interpretivist position in the philosophy of mind, of the view that having mental properties is a matter of interpretation. Bruno Mölder elaborates and defends a particular version of interpretivism, the ascription theory, which explicates the possession of mental states with contents in terms of their canonical ascribability, and shows how it can withstand various philosophical challenges. Apart from a defence of the ascription theory from the objections commonly directed (...) against interpretivism, the book provides a critical analysis of major alternative accounts of mental state possession as well as the interpretivist ideas originating from Donald Davidson and Daniel Dennett. The viability of the approach is demonstrated by showing how one can treat mental causation as well as the faculties closely connected with consciousness -- perception and the awareness of one’s own mental states -- in the interpretivist framework. (shrink)

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

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

25 leading contemporary theorists of criminal law tackle a range of foundational issues about the proper aims and structure of the criminal law in a liberal democracy. The challenges facing criminal law are many. There are crises of over-criminalization and over-imprisonment; penal policy has become so politicized that it is difficult to find any clear consensus on what aims the criminal law can properly serve; governments seeking to protect their citizens in the face of a range of perceived threats have (...) pushed the outer limits of criminal law and blurred its boundaries. To think clearly about the future of criminal law, and its role in a liberal society, foundational questions about its proper scope, structure, and operations must be re-examined. What kinds of conduct should be criminalized? What are the principles of criminal responsibility? How should offences and defences be defined? The criminal process and the criminal trial need to be studied closely, and the purposes and modes of punishment should be scrutinized. Such a re-examination must draw on the resources of various disciplines-notably law, political and moral philosophy, criminology and history; it must examine both the inner logic of criminal law and its place in a larger legal and political structure; it must attend to the growing field of international criminal law, it must consider how the criminal law can respond to the challenges of a changing world.Topics covered in this volume include the question of criminalization and the proper scope of the criminal law; the grounds of criminal responsibility; the ways in which offences and defences should be defined; the criminal process and its values; criminal punishment; the relationship between international criminal law and domestic criminal law. Together, the essays provide a picture of the exciting state of criminal law theory today, and the basis for further research and debate in the coming years. (shrink)

In this paper, I show that a Kantian account can explain both the rule that consent is normally a defence to assault and the exceptions to that rule. Kant himself does not discuss the offence of assault, but the body – the manifestation of the person in space and time – is central to Kant’s account of each person’s innate right of humanity. Since Kant’s legal philosophy is oriented around the idea that each limit on freedom of action can be (...) justified only for the sake of freedom itself, it is plausible to think that this might do all the work; but that is not the case. The law may rightly refuse to recognize consent to a physical interaction that is inconsistent with treating the participants as persons and may, in such cases, create an exception to the usual rule that lack of consent is an element of assault.But this Kantian account needs to be supplemented in two ways. First, the account provides a structure but no criteria for determining whether an interaction is inconsistent with personhood. Second, the law does sometimes recognize consent as a defence in activities that expose the participants to the intentional application of force that creates a risk of permanent and serious damage, even though that damage itself could not be consented to. The distinction turns out to run parallel to Kant’s solution to the problem of sexuality: how is it possible for two persons to engage in an activity that necessarily requires each to treat the other as an object, and yet to retain their humanity? With these supplements, the limits on consent in the positive law of assault can be justified in Kantian terms. (shrink)

This paper has two main goals. The first is to defend a particular account of answerability according to which a person is (morally or criminally) answerable for their conduct if it is (morally or criminally) wrongful under the same description under which it is imputable to their agency. Negating defences in law aim to defeat criminal answerability by negating some element of the charged offence while their moral analogues aim to defeat moral answerability by defeating the aptness of the (...) description under which an action is imputed. In contrast, affirmative defences and their moral analogues aim to defeat the move from answerability to liability to sanction by offering an exculpatory explanation for the wrongful conduct. The second goal of this paper is to argue that there are important differences between the way that ignorance functions in negating defences and their moral analogues and affirmative defences and their moral analogues. Specifically, when ignorance functions to defeat answerability, it need only be sincere, but it is typically limited to matters of fact, whereas both moral and non-moral ignorance can excuse one from liability but only if non-culpable. (shrink)

Attempts to understand the fundamental forces shaping conflict between attacking and defending groups can be hampered by a narrow focus on humans and reductionist, oversimplified modelling. Further progress depends on recognising the striking parallels in between-group conflict across the animal kingdom, harnessing the power of experimental tests in nonhuman species and modelling the eco-evolutionary feedbacks that drive attack and defence.