A solution to the problem of “overcriminalization” appears to be decriminalization of certain crimes. This Essay focuses on a group of crimes that has been labeled “proxy crimes” as a candidate to be eliminated. What are proxy crimes? Douglas Husak defines them as “offenses designed to achieve a purpose other than to prevent the conduct they explicitly proscribe.” Michael Moore describes them as involving situations where we “use one morally innocuous act as a (...) class='Hi'>proxy for another, morally wrongful act or mental state.” Put that way, proxy crimes seem highly problematic, and Larry Alexander and Kimberly Ferzan bluntly put it, “We reject proxy crimes.” This Essay asks whether we should reject proxy crimes by presenting and evaluating Alexander and Ferzan’s treatment of the subject. After describing several different types of crimes that may be characterized as proxy crimes and Alexander and Ferzan’s rejection of most of them and their arguments for doing so, this Essay argues that their rejection of proxy crimes is incomplete, which leaves their theory open to a range of possibilities regarding the proper place of proxy crimes in criminal law. This Essay concludes that getting a handle on the problem of proxy crimes and overcriminalization requires a theory of the state and an articulation of the proper relationship between the state and its citizens that can give guidance on when the state can demand obedience from citizens to support the state and when failures to comply with such demands render one criminally culpable. Without such a theory, proposals to address overcriminalization cannot travel very far. (shrink)

Our drug policy has been widely deemed a failure because the criminalization of drug use has not succeeded in reducing prevalence rates. I contend that the most promising basis to defend the justifiability of drug offenses is to construe them as proxy crimes: offenses designed to prevent the commission of other, more serious crimes. I make a case that many law enforcement officials use drug proscriptions for this purpose in the real world. When construed as proxy (...) crimes, drug prohibitions are less vulnerable to some of the familiar objections brought against their legitimacy. Nonetheless, the justification for punishing those who violate drug proscriptions remains unpersuasive. (shrink)

This paper discusses differences between two major schools in philosophy of criminal law, retributivism and consequentialism, with regard to the risk of punishing the innocent. As it is argued, the main point of departure between these two camps in this respect lies in their attitude towards the high evidentiary threshold in a criminal trial: while retributivism seems to strongly support setting this standard high, consequentialists may find it desirable to relax it in some cases. This discussion is set in the (...) context of proxy criminalization, i.e. a situation, in which some suspicious behaviour is criminalized. Since proxy criminalization may be understood as an effective lowering of the evidentiary threshold, its employment is justifiable from the consequentialist perspective, while being highly problematic for the retributivists. (shrink)

The number of admissions to hospitals of patients without a proxy decision maker is rising. Very often these patients need fairly immediate medical intervention for which informed consent—or informed refusal—is required. Many have recommended that there be a process in place to make these decisions, and that it include a variety of perspectives. People are particularly wary of relying solely on medical staff to make these decisions. The University Hospitals Case Medical Center recruits community members from its Ethics Committee (...) to serve on a subcommittee, the Patients Without Proxies (PWP) Committee, which works with medical staff during the decision-making process for these patients. Generally, the community members go to the bedside to observe patients. This article looks at how those unused to observing hospitalized patients who are sick and/or dying are affected, comparing them to mock jurors in a research study who are exposed to graphic photographs related to a fabricated crime scene. Judgments made by the mock jurors are affected by viewing such images. The personal experience of witnessing unfamiliar and shocking scenes affects their subsequent judgments. While it may be difficult to tease out whether observing patients causes PWP members to be benefited or harmed, they are affected by what they see. If a variety of perspectives is desirable to reduce possible bias or error, this article argues that at least one community member should refrain from seeing the patient in order to add a different and valuable voice to the decision-making process. Members of the subcommittee base their judgments on the various kinds of information available. Sometimes the things they see, hear, or feel may affect them particularly deeply, and affect their judgments as well. In this article I explore the idea that something like this may be happening in a particular kind of clinical ethics case consultation. (shrink)

The notion that a false positive (false conviction) is worse than a false negative (false acquittal) is a deep-seated commitment in the theory of criminal law. Its most illustrious formulation, the so-called Blackstone’s ratio, affirms that “it is better that ten guilty persons escape than that one innocent suffer”. Are people’s evaluations of criminal statutes consitent with this tenet of the Western legal tradition? To answer this question, we conducted three experiments (total _N_ = 2492) investigating how people reason about (...) a particular class of offenses—proxy crimes—known to vary in their specificity and sensitivity in predicting actual crime. By manipulating the extent to which proxy crimes convict the innocent and acquit those guilty of a target offense, we uncovered evidence that attitudes toward proxy criminalization depend primarily on its propensity toward false positives, with false negatives exerting a substantially weaker effect. This tendency arose across multiple experimental conditions—whether we matched the rates of false positives and false negatives or their frequencies, whether information was presented visually or numerically, and whether decisions were made under time pressure or after a forced delay—and was unrelated to participants’ probability literacy or their professed views on the purpose of criminal punishment. Despite the observed inattentiveness to false negatives, when asked to justify their decisions, participants retrospectively supported their judgments by highlighting the proxy crime’s efficacy (or inefficacy) in combating crime. These results reveal a striking inconsistency: people favor criminal policies that protect the rights of the innocent, but report comparable concern for their expediency in fighting crime. (shrink)

This article examines the “aesthetic” and “prescient” turn in the surveillant assemblage and the various ways in which risk technologies in local law enforcement are reshaping the post hoc traditions of the criminal justice system. The rise of predictive policing and crime prevention software illustrate not only how the world of risk management solutions for public security is shifting from sovereign borders to inner-city streets but also how the practices of authorization are allowing software systems to become proxy forms (...) of sovereign power. The article also examines how corporate strategies and law enforcement initiatives align themselves through media, connectivity, and consumer-oriented opt-in strategies that endeavor to “mold” and “deputize” ordinary individuals into obedient and patriotic citizens. (shrink)

It might be objected to penal substitutionary theories that punishing Christ could not possibly meet the demands of divine retributive justice. For punishing another person for my crimes would not serve to remove my guilt. The Anglo-American system of justice, in fact, does countenance and even endorse cases in which a substitute satisfies the demands of retributive justice. Moreover, Christ’s being divinely and voluntarily appointed to act not merely as our substitute but as our representative enables him to serve (...) as our proxy before God, so that when he is punished, we are punished, to the satisfaction of divine justice. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Vice and ViciousnessGwen Adshead (bio)Keywordspsychiatric diagnosis, antisocial behaviorI am Grateful to Professor Sadler for such a clear and helpful account of how human misconduct (or vice) has been confounded diagnostically with human disease (as defined by the Diagnostic and Statistical Manual of Mental Disorders [DSM] classificatory system); and even more grateful for the chance to offer comment. Professor Sadler’s paper raises questions about the DSM enterprise as a whole; (...) and this is a field in which I have no particular experience to offer for additional discussion. But his other main point is that psychiatrists are constantly invited to distinguish between vice and disease, and he gives three examples, one of which is a clinical case from my own research. I entirely agree with him that this is a good example, and in this commentary, I will explain why.The argument is about how to distinguish between human behaviors that reflect chosen deviance from prosocial norms and behaviors that reflect a diseased state of mind. Arguments are both legal and political: Aristotle, in the Nichomachean Ethics sets out conditions in which a man should not be blamed for his behaviors, and to some extent these conditions still hold good in the criminal court; ignorance of the meaning of one’s actions, or being forced to act under duress, are good legal defenses. Politically, as Professor Sadler makes clear, the arguments were set out first by Foucault and then Szasz; it is possible for the state to use medical discourse to turn what might be a legitimate social grievance into individual pathology—the ultimate ad hominem argument.These arguments have not gone away, despite the best efforts of a materialist wing of neuropsychiatry, aided and abetted by pharmaceutical companies, who have a great interest in reductionist arguments in the biosciences. This is particularly so in relation to antisocial behaviors, especially crime. I want to focus on one particular type of antisocial behaviors, namely, the wish to hurt another person. I focus on this because it is my clinical bread and butter: My work as a forensic psychiatrist and psychotherapist requires me to try and understand how and why people want to hurt others. But I think it also makes sense to focus on this because it is the most problematic wish socially and demands understanding. All three of Professor Sadler’s examples involve hurt and harm to others, and it is noteworthy that neuroreductionist or medicalized explanations are rarely sought for theft or tax evasion. This must be in part because socially we think it is normal to try and profit yourself, even illegally, if you can get away with it. (I actually think that such behavior is not all that normal, but that is an argument for another day).Let us take the clinical example from my own work, cited by Professor Sadler. It is an example of what is called in the DSM “Factitious Disorder by Proxy” (FDP), although it also has an unhelpful eponym of “Munchausen’s Syndrome by Proxy.” As a practicing forensic psychiatrist, it is one of the best examples I know of what has been crudely dichotomized as a “mad or bad?” debate. A [End Page 23] mother quite deliberately makes her child ill, and then presents the child to medical services as in need of hospital treatment. In the case I described with Dr. Bluglass, the mother smothered her baby girl and then presented her as having “breathing difficulties” (which was, of course, quite true in one sense). There are two examples of vice here: deliberately hurting your child and lying to others about it; the lies also have the indirect result of potentially causing more harm to the baby. Harming your child, and then lying about it, in a not-for-profit way, are criteria for FDP.Quite how these actions ever made it into the DSM is puzzling, when they are quite straightforwardly antisocial. If a man in the street were to smother another man to the point of asphyxia, and then lie about it, we might well ask many questions about why he had done it, but we would not say that no offence had occurred. We... (shrink)

In this contribution, I plumb the depths of Georges Didi-Huberman’s abiding notion of the “eye of history” and, in particular, I explore to which responsible acts this notion might hold us. Does a reader of texts or viewer of an image have a right to claim a certain status as witness if the experience of being present at the crime is “merely” by the proxy of a text or an image? This is a fundamental ethical question and, consequently, a (...) profoundly political one that Didi-Huberman’s abiding exploration of the “eye of history” asks. I attempt to answer it by reading a variety of texts by the prolific author. In particular, however, I test what Didi-Huberman speculates in Images in Spite of All about what went through the mind of Alex, the Sonderkommando who took four furtive shots from an Auschwitz gas chamber, against what I’ve learned recently after having discovered the Hiroshima photographs made on 6 August 1945 by hibakusha Yoshito Matsushige. (shrink)

Recently, religious organisations, governments and public institutions have begun to offer apologies for historical wrongs. Can they legitimately do so? Departing from the tendency, Professor Hubert Markl, President of the Max Planck Society, has offered strong reasons for not apologising for the crimes of medical scientists who experimented on human subjects during the Nazi era. He argues that only the perpetrators can meaningfully apologise. Markl’'s position is considered and rejected in favour of the view that apologies by proxy (...) for historical wrongs are justifiable and should be made by institutions that have the authority to do so. (shrink)

War is being privatized at an accelerating rate. This paper suggests that the benefits from privatizing war accrue to the political and economic elite in thatprivatization reduces the political costs of war, allows for state crimes to be committed by proxy, turns war into a free crime zone, and has created new opportunities for war profiteering. However, the benefits to the political and economic elite are not without their costs to the remainder of the population. The capital accumulation (...) process impels companies to expand their markets in order to survive and grow, focus on efficiency in order to maximize profits, and concentrate on fulfilling the contract terms in order to acquire more business. The paper demonstrates how the introduction of these motives has negatively impacted the war in Iraq and foreign affairs. (shrink)

The term "social science" promises more than its practitioners can deliver: it promises knowledge. This knowledge is to consist of statements of empirical regularities of such quality as will enhance predictive power and inform public and private policy. Boundaries of Competence illuminates obstacles to this aspiration. Chapter 1 grounds knowledge in perception. Chapter 2 challenges the assumption that ordinary language necessarily describes reality and reveals the mischief words can do. Chapter 3 proposes a continuum of perceiving-conceiving involved in different ways (...) of "knowing" worlds. Chapter 4 lays out requirements of measurement, arguing that assigning numbers to dubious observations gives false assurance that mathematical manipulations necessarily rep- resent events. Chapter 5 shows how choice of unit affects the correlations we find in our search for causes. Chapter 6 holds that, given deficiencies in knowledge and perhaps because of the way Nature works, we assess probabilities rather than seek certainties. Chapter 7 notes difficulties in counting events that consist of "social facts," which "depend on us," and those that refer to "brute facts," that exist independently of us. Chapter 8 criticizes the practice of employing proxies for observations of what we're talking about. In particular, it demonstrates the error produced by relying on what people say as measure of what they do. Chapter 9 criticizes ways of explaining conduct by characterizing actors and their acts, and by "understanding" them through empathy. Chapter 10 discusses the important and never-ending quarrel about causation. Chapters 11 and 12 argue that in social affairs, decision is regularly torn between doing what is effective (rational) and doing what is right (moral). Nettler's writing is crisp, and his argument balanced. He employs research from several disciplines to challenge ideologically driven descriptions of our condition and explanations of our conduct. Gwynne Nettler is professor emeritus at the University of Alberta in Edmonton, Canada, where he taught psychology, sociology, and criminology. His previous books include Explanations, Social Concerns, and Explaining Crime. (shrink)

Transitive proxy voting (or "liquid democracy") is a novel form of collective decision making, often framed as an attractive hybrid of direct and representative democracy. Although the ideas behind liquid democracy have garnered widespread support, there have been relatively few attempts to model it formally. This paper makes three main contributions. First, it proposes a new social choice-theoretic model of liquid democracy, which is distinguished by taking a richer formal perspective on the process by which a voter chooses a (...) proxy. Second, it examines the model from an axiomatic perspective, proving (a) a proxy vote analogue of May's Theorem and (b) an impossibility result concerning monotonicity properties in a proxy vote setting. Third, it explores the topic of manipulation in transitive proxy votes. Two forms of manipulation specific to the proxy vote setting are defined, and it is shown that manipulation occurs in strictly more cases in proxy votes than in classical votes. (shrink)

Without trust there is no credible human health research (HHR). This article accepts this truism and addresses a crucial question that arises: how can trust continually be promoted in an ever-changing and uncertain HHR environment? The article analyses long-standing mechanisms that are designed to elicit trust—such as consent, anonymization, and transparency—and argues that these are best understood as trust represented by proxies of trustworthiness, i.e., regulatory attempts to convey the trustworthiness of the HHR system and/or its actors. Often, such proxies (...) are assumed to operate as markers that trust exists or, at least, has not been lost. But, since trust can neither be “built” nor “secured,” this is a precarious assumption. Worryingly, there is no existing theoretical account of how to understand and evaluate these proxies of trustworthiness as part of a trusted HHR ecosystem. To remedy this, the paper argues for a radical reimagining of trust and trustworthiness as performative acts that ought to be understood in relation to each other and by reference to the common values at stake. It is shown that proxies of trustworthiness are the operational tools used to perform trustworthiness. It advocates for a values-based approach to understanding the relationship between trust and trustworthiness. This establishes a strong basis for an evaluative framework for proxies of trustworthiness, i.e., to determine how to perform trustworthiness well. Five common proxies in HHR are scrutinized from a values perspective. The contribution is to provide a far-reaching normative and practical framework by which existing and future proxies of trustworthiness can be identified, assessed, maintained, or replaced in rapidly changing HHR regulatory ecosystems where trust itself is crucial to the success of the entire HHR enterprise. (shrink)

This chapter explains the mechanism of proxy agency whereby a group (or individual) acts through another authorized to represent it.

Proxy agency is the capacity of individuals and groups to act for other individuals or groups in specific social transactions. For example, a legal team acts as a proxy for a client in a courtroom, or the Prime Minister acts as a proxy for the UK Government when attending international meetings, etc. Although a very common social phenomenon, it has not yet received enough philosophical treatment. Currently, the most developed account of this capacity is Ludwig’s proxy (...) agency in collective action. Yet, his account relies on a deflationary, we-content approach to collective intentionality (á la Bratman). In this chapter, I argue that this approach is far too weak to explain proxy agency in institutional contexts—where the individuals and groups formally authorised to perform rule-guided group activities for the principal hold a strong, non-conditional we-commitment. In order to elucidate this feature, I provide an account of proxy agency based on a more robust, we-mode approach to collective intentionality (á la Tuomela). I suggest with this that, for institutional proxy agency to operate as expected, there must be appropriate conditions of sociality in place—which ultimately coheres with the larger project developed by Tuomela on social ontology. (shrink)

In proxy assertion an individual or group asserts something through a spokesperson. The chapter explains proxy assertion as resting on the assignment of a status role to a person (that of spokesperson) whose utterances acts in virtue of that role have the status function of signaling that the principal is committed in a way analogous to an individual asserting that in his own voice. The chapter briefly explains how status functions and status roles are grounded and then treats, (...) in turn, the case of a spokesperson for an individual and a group and the differences in the significance of what the spokesperson does in each case. Finally, it reviews complications introduced by spokesperson autonomy, where the spokesperson is given leave to represent her principal’s views or positions in her own words and to respond to questions on his behalf. (shrink)

This paper gives an account of proxy agency in the context of collective action. It takes the case of a group announcing something by way of a spokesperson as an illustration. In proxy agency, it seems that one person or subgroup's doing something counts as or constitutes or is recognized as (tantamount to) another person or group's doing something. Proxy agency is pervasive in institutional action. It has been taken to be a straightforward counterexample to an appealing (...) deflationary view of collective action as a matter of all members of a group making a contribution to bringing about some event. I show that this is a mistake. I give a deflationary account of constitutive rules in terms of essentially collective action types. I then give an account of one form of constitutive agency in terms of constitutive rules. I next give an account of status functions—of which being a spokesperson is one—that also draws on the concept of a constitutive rule. I then show how these materials help us to see how proxy agency is an expression of the agency of all members of the group credited with doing something when the proxy acts. (shrink)

Preface: help! my brainchild's been kidnapped! -- Intellectual misconduct: backwards, forward, and sideways -- The world of scholarship: rituals and rewards, norms and departures -- Structural and organizational causes of scholarly misconduct -- Cultural causes of scholarly misconduct -- Individual and situational causes of scholarly misconduct -- Scholarly misconduct as crime -- Criminological theory and scholarly crime -- Implications for theory and research -- Preventing and controlling scholarly crime -- Afterword: against all odds, a code is born.

The culture that characterises mature information societies is now evolving from being a culture of signs and signification into a culture of proxies and interaction. Through a definition and discussion of proxies and degenerate proxies, this paper analyses the factors behind this evolution and the potential implications for such a major societal transformation.

Situational crime prevention (SCP) measures attempt to prevent crime by reducing the opportunities for crime to occur. One of the ways in which some SCP measures reduce such opportunities is by providing victims with advice about how to avoid being victimised, for instance through public awareness campaigns or safety apps. Some scholars claim that this approach to preventing crime often or always promotes victim-blaming and that it is therefore morally wrong to pursue such strategies. Others have made sweeping rejections of (...) this claim. However, in this paper, I suggest that neither view is correct. Specifically, I demonstrate that there are at least three distinct ways of interpreting what I term the victim-blaming argument against advice-giving SCP measures – i.e. as an argument based on a concern for direct victim-blaming, indirect victim-blaming, or self-blame – and that both SCP opponents and supporters have legitimate grounds for their position, depending on how the argument is spelled out. (shrink)

After some introductory remarks on the German legal system and German legal politics, the main forms of datanet crime on the Internet are sketched. After that, one of the most important Internet-cases of the last decade, the CompuServe case, is discussed in some detail. One of the main problems of datanet crime is its global reach. The world-spanning nature of the cyberspace significantly enlarges the ability of offenders to commit crimes that will affect people in a variety of other (...) countries. On the other hand, the jurisdiction of national criminal law cannot be expanded at will by any single nation. A transnational criminal law for the Internet is possible but should be restricted to the defence of universally (or nearly universally) accepted interests and values. In effect, it seems that the problems of computer-related crime on the Internet cannot be solved by criminal law alone. (shrink)

Why do war crimes occur? Are perpetrators of war crimes always blameworthy? In an original and challenging thesis, this book argues that war crimes are often explained by perpetrators' beliefs, goals, and values, and in these cases perpetrators may be blameworthy even if they sincerely believed that they were doing the right thing.

Interest in just war theory has boomed in recent years, as a revisionist school of thought has challenged the orthodoxy of international law, most famously defended by Michael Walzer [1977]. These revisionist critics have targeted the two central principles governing the conduct of war (jus in bello): combatant equality and noncombatant immunity. The first states that combatants face the same permissions and constraints whether their cause is just or unjust. The second protects noncombatants from intentional attack. In response to these (...) critics, some philosophers have defended aspects of the old orthodoxy on novel grounds. Revisionists counter. As things stand, the prospects for progress are remote. In this paper, we offer a way forward. We argue that exclusive focus on first-order moral principles, such as combatant equality and noncombatant immunity, has led revisionist and orthodox just war theorists to engage in “proxy battles.” Their first-order moral disagreements are at least partly traceable to second-order disagreements about the nature and purpose of political theory. These deeper disputes have been central to the broader discipline of political theory for several years; we hope that bringing them to bear on the ethics of war will help us move beyond the present impasse. (shrink)

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)

Bernard Linsky and Edward Zalta have recently proposed a new form of actualism. I characterize the general form of their view and the motivations behind it. I argue that it is not quite new – it bears interesting similarities to Alvin Plantinga’s view – and that it definitely isn’t actualist.

When patients are in vegetative states and their lives are maintained by medical devices, their surrogates might offer proxy consents on their behalf in order to terminate the use of the devices. The so-called ’substituted judgment thesis’ has been adopted by the courts regularly in order to determine the validity of such proxy consents. The thesis purports to evaluate proxy consents by appealing to putative counterfactual truths about what the patients would choose, were they to be competent. (...) The aim of this paper is to reveal a significant limitation of the thesis, which has hitherto been recognised only vaguely and intuitively. By appealing to the metaphysics of counterfactuals I explain how the thesis fails to determine the validity of proxy consents in a number of actual cases. (shrink)

First published in 1984, this book examines corporate crime in the pharmaceutical industry. Based on extensive research, including interviews with 131 senior executives of pharmaceutical companies in the United States, the United Kingdom, Australia, Mexico and Guatemala, the book is a major study of white-collar crime. Written in the 1980s, it covers topics such as international bribery and corruption, fraud in the testing of drugs and criminal negligence in the unsafe manufacturing of drugs. The author considers the implications of his (...) findings for a range of strategies to control corporate crime, nationally and internationally. (shrink)

In this paper we argue that the difference between standard measurement and proxy measurement in paleoclimatology should not be understood in terms of ‘directness’. Measurements taken by climatologists to be paradigmatically non-proxy exhibit the kinds of indirectness that are thought to separate them proxy measurement. Rather, proxy measurements and standard measurements differ in how they account for confounding causal factors. Measurements are ‘proxy’ to the extent that the measurements require vicarious controls, while measurements are not (...) proxy, but rather ‘standard’, to the extent that the measurement apparatus provides sufficient physical control on its own. Guided by this account of proxy measurement, we then consider some of the challenges specific to historical proxy measurement and how it is that historical scientists address these challenges. Historical scientists rely on significant causal dependencies and naturally preserved signals to mitigate the influence of destructive processes over time. (shrink)

The Mental Capacity Act 2005 has provided unified scope in the British medical system for proxy consent with regard to medical decisions, in the form of a lasting power of attorney. While the intentions are to increase the autonomous decision making powers of those unable to consent, the author of this paper argues that the whole notion of proxy consent collapses into a paternalistic judgement regarding the other person’s best interests and that the new legislation introduces only an (...) advisor, not a proxy with the moral authority to make treatment decisions on behalf of another. The criticism is threefold. First, there is good empirical evidence that people are poor proxy decision makers as regards accurately representing other people’s desires and wishes, and this is therefore a pragmatically inadequate method of gaining consent. Second, philosophical theory explaining how we represent other people’s thought processes indicates that we are unlikely ever to achieve accurate simulations of others’ wishes in making a proxy decision. Third, even if we could accurately simulate other people’s beliefs and wishes, the current construction of proxy consent in the Mental Capacity Act means that it has no significant ethical authority to match that of autonomous decision making. Instead, it is governed by a professional, paternalistic, best-interests judgement that undermines the intended role of a proxy decision maker. The author argues in favour of clearly adopting the paternalistic best-interests option and viewing the proxy as solely an advisor to the professional medical team in helping make best-interests judgements. (shrink)

When patients are in vegetative states and their lives are maintained by medical devices, their surrogates might offer proxy consents on their behalf in order to terminate the use of the devices. The so‐called ‘substituted judgment thesis’ has been adopted by the courts regularly in order to determine the validity of such proxy consents. The thesis purports to evaluate proxy consents by appealing to putative counterfactual truths about what the patients would choose, were they to be competent. (...) The aim of this paper is to reveal a significant limitation of the thesis, which has hitherto been recognised only vaguely and intuitively. By appealing to the metaphysics of counterfactuals I explain how the thesis fails to determine the validity of proxy consents in a number of actual cases. (shrink)

Scholars depict punishment as a moral dialogue between the community and the offender, which addresses both the offender’s crime and character. However, how the penal message evolves vis a vis that crime and character as it passes through the different stages of the criminal process has remained under-theorized. This article, building on communicative theory, explores the interrelation between crime and character along the penal process, from sentencing, through prison, to parole release. We argue that in the penal dialogue the relationship (...) between crime and character evolves in a dynamic way through three phases: separateness (sentencing), fusion (prison), and re-distinction (parole) of crime and character. The proposed analysis develops the communicative meaning of the penal process, provides a normative account of the work of punishment administration authorities, and explores applications of our proposed normative analysis for the administration of the punishment. (shrink)

I discuss conditions for the validity of proxy consent to treatment on behalf of an incompetent person. I distinguish those incompetents who, when previously competent, expressed an opinion on the treatment in question from those who were never competent or who, though previously competent, never expressed an opinion on the proposed treatment. In the former case valid proxy consent usually requires respecting the stated wishes of the patient. The latter case is more difficult. I consider a widely-held principle (...) which appeals to the counterfactual wishes of the incompetent person. I argue that it is unacceptable and propose in its place a principle having to do with the best interests of the patient. Keywords: proxy consent, informed consent, competence, hypothetical wishes, substituted judgment, counterfactual wishes CiteULike Connotea Del.icio.us What's this? (shrink)

The paper clarifies the relative merits and proper roles of standards of review in the determination of proxy consent for those unable to make decisions concerning their own medical treatment. The "substituted judgment" standard asks which treatment the incompetent person would choose if competent, while the "best interests" test asks which treatment would benefit the patient. The tests are discussed in relation to the moral principles of autonomy and beneficence which provide their justification. I distinguish six types of cases (...) involving incompetent patients and argue that which standard is appropriate depends on the type of case involved. A "rational choice" standard, which asks "What would the incompetent patient choose if his or her choice were rational?", is proposed as a way of determining best interests. Keywords: proxy consent, nontreatment of incompetent persons, substituted judgment CiteULike Connotea Del.icio.us What's this? (shrink)

The Institute of Medicine's report, the American Medical Association's project, the Open Society Institute's and the initiative sponsored by the Robert Wood Johnson Foundation have focused attention on improving the care of dying patients. These efforts include advance care planning and the use of written advance directives. Although previous studies have provided quantitative descriptions of patient preferences for life-sustaining treatment, including those documented in written ADs, to our knowledge open-ended written preferences have not been studied. Studies of these open-ended preferences (...) could highlight issues with respect to quality end-of-life care. The purpose of this study was to explore the open-ended proxy, health, and personal care preferences of people with HIV as expressed in a written AD form. (shrink)

When we define something as a crime, we generally thereby criminalize the attempt to commit that crime. However, it is a vexing puzzle to specify what must be the case in order for a criminal attempt to have occurred, given that the results element of the crime fails to come about. I argue that the philosophy of action can assist the criminal law in clarifying what kinds of events are properly categorized as criminal attempts. A natural thought is that this (...) project should take the form of specifying what it is in general to attempt or try to perform an action, and then to define criminal attempts as attempts to commit crimes. Focusing on Gideon Yaffe's resourceful work in Attempts (Oxford University Press, 2010) as an example of this strategy, I argue that it results in a view that is overly inclusive: one will count as trying to commit a crime even in the far remote preparatory stages that we in fact have good reason not to criminalize. I offer an alternative proposal to distinguish between mere preparations and genuine attempts that has its basis not in trying, but doing: a criminal attempt is underway once what the agent is doing is a crime. Working out the details of this schema turns out to have important implications for action theory. A recently burgeoning view known as Naive Action Theory holds that all action can be explained by appeal to some further thing that the agent is doing, and that that the same explanatory nexus is at work even when we appeal to what the agent is intending, trying, or preparing to do -- these notions do explanatory work because they too refer to actions that are in progress, albeit in their infancy. If this is right, than the notion of 'doing' will also be too inclusive for the purposes of the criminal law. I argue that we should draw the reverse conclusion: the distinctions between pure intending, trying, preparing, and doing serve an important purpose in the criminal law, and this fact lends support to the view that they are genuine metaphysical and explanatory distinctions. (shrink)

Inchoate crime consists of acts that are regarded as crimes despite the fact that they are only partial or incomplete in some respect. This includes acts that do not succeed in physically harming the victim or are only indirectly related to such a result. Examples include attempts (as in attempted murder that does not eventuate in the killing of anyone), conspiracy (in which case the crime has only been planned, not yet acted out) and incitement (where the inciter does (...) not himself commit the crime he is urging others to undertake). The present paper attempts to analyze these inchoate crimes from a libertarian perspective, based on the non-aggression principle. (shrink)

This is a review essay of Lagasnerie, Judge and Punish and Fassin, The Will to Punish. It explores the way that these two books challenge conventional thinking about the relationship between crime and punishment.

In print for the first time in over ten years, Act and Crime provides a unified account of the theory of action presupposed by both Anglo-American criminal law and the morality that underlies it. The book defends the view that human actions are always volitionally caused bodily movements and nothing else. The theory is used to illuminate three major problems in the drafting and the interpretation of criminal codes: 1) what the voluntary act requirement both does and should require; 2) (...) what complex descriptions of actions prohibited by criminal codes both do and should require ; and 3) when two actions are 'the same' for purposes of assessing whether multiple prosecutions and multiple punishments are warranted. The book both contributes to the development of a coherent theory of action in philosophy, and it provides both legislators and judges a grounding in three of the most basic elements of criminal liability. (shrink)

This book was the first booklength treatment of the philosophical foundations of international criminal law. The focus is on the moral, legal, and political questions that arise when individuals who commit collective crimes, such as crimes against humanity, are held accountable by international criminal tribunals. These tribunals challenge one of the most sacred prerogatives of states - sovereignty - and breaches to this sovereignty can be justified in limited circumstances, following what the author calls a minimalist account of (...) the justification of international prosecution. Written in a clear and accessible style, this book should appeal to anyone with an interest in international law, political philosophy, international relations, and human rights theory. (shrink)

Larry May argues that the best way to understand war crimes is as crimes against humanness rather than as violations of justice. He shows that in a deeply pluralistic world, we need to understand the rules of war as the collective responsibility of states that send their citizens into harm's way, as the embodiment of humanity, and as the chief way for soldiers to retain a sense of honour on the battlefield. Throughout, May demonstrates that the principle of (...) humanness is the cornerstone of international humanitarian law, and is itself the basis of the traditional principles of discrimination, necessity, and proportionality. He draws extensively on the older Just War tradition to assess recent cases from the International Tribunal for Yugoslavia as well as examples of atrocities from the archives of the International Committee of the Red Cross. (shrink)

The perfect crime -- The spectre of the will -- The radical illusion -- Trompe-l'œl genesis -- The automatic writing of the world -- The horizon of disappearance -- The countdown -- The material illusion -- The secret vestiges of perfection -- The height of reality -- The irony of technology -- Machinic snobbery -- Objects in this mirror -- The Babel syndrome -- Radical thought -- The other side of the crime -- The world without women -- The surgical (...) removal of otherness -- The "laying-off" of desire -- The new victim order -- Indifference and hatred -- The revenge of the mirror people. (shrink)

This book explores how the design, construction, and use of robotics technology may affect today's legal systems and, more particularly, matters of responsibility and agency in criminal law, contractual obligations, and torts. By distinguishing between the behaviour of robots as tools of human interaction, and robots as proper agents in the legal arena, jurists will have to address a new generation of "hard cases." General disagreement may concern immunity in criminal law (e.g., the employment of robot soldiers in battle), personal (...) accountability for certain robots in contracts (e.g., robo-traders), much as clauses of strict liability and negligence-based responsibility in extra-contractual obligations (e.g., service robots in tort law). Since robots are here to stay, the aim of the law should be to wisely govern our mutual relationships. (shrink)

Objection to Quine's argument for the inscrutability of reference. The proxy functions don't preserve the relations to experience, contrary to Quine's claims.