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

Following are two short contributions to the book, _Criminal Law Conversations_: commentaries on Paul Robinson's discussion of "Empirical Desert" and Antony Duff & Sandra Marshal's discussion of the sharing of wrongs.

This chapter contains section titled: The Need for a Theory of Criminalization The Nature of the Criminal Law Inadequate Theories of Criminalization A Better Approach to Criminalization References Further Reading.

This is an introduction to the special issue on criminal law theory.

The book focuses on one fundamental thesis: when creating the norms of criminal law, the legislator should strive for their compatibility with the principle of human dignity while taking into account the ethical legitimacy of criminal law.

In the recently published collection, Criminal Law and the Authority of the State, two contributions allude to an analogy with parental authority as a means to a better understanding of the institution of criminal punishment, but reach different conclusions. Malcolm Thorburn uses the parental authority analogy to justify the institution of state punishment as an assertion of robust authority over offenders. Antje du Bois-Pedain uses the same analogy to advocate the idea of punishment as an inclusionary practice, designed (...) to reintegrate offenders into society. I argue that Thorburn’s theory of robust authority is inconsistent if not self-contradictory when it tries to assume a liberal posture, and that du Bois-Pedain’s reintegrative model provides a better account of the justification and objectives of state punishment. (shrink)

This Major Reference series brings together a wide range of key international articles in law and legal theory. Many of these essays are not readily accessible, and their presentation in these volumes will provide a vital new resource for both research and teaching. Each volume is edited by leading international authorities who explain the significance and context of articles in an informative and complete introduction.

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 collects 17 of Douglas Husak's influential essays in criminal law theory. The essays span Husak's original and provocative contributions to the central topics in the field, including the grounds of criminal liability, relative culpability, the role of defences, and the justification of punishment. The volume includes an extended introduction by the author, drawing together the themes of his work, and exploring the goals of criminal theory.

Criminal law as public law -- Criminal law as public law -- Criminal law as public law -- Mass incarceration and the theory of punishment -- Reasons to criminalize -- Formalism and pragmatism in criminal procedure -- Responsibility without resentment.

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

Does criminal liability require an act? -- Motive and criminal liability -- The costs to criminal theory of supposing that intentions are irrelevant to permissibility -- Transferred intent -- The nature and justifiability of nonconsummate offenses -- Strict liability, justice, and proportionality -- The sequential principle of relative culpability -- Willful ignorance, knowledge, and the equal culpability thesis : a study of the significance of the principle of legality -- Rapes without rapists : consent and reasonable mistake (...) -- Mistake of law and culpability -- On the supposed priority of justification to excuse -- Partial defenses -- The "but everybody does that!" defense -- The de minimis "defense" to criminal liability -- Why punish the deserving -- Malum prohibitum and retributivism -- Already punished enough. (shrink)

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

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

This article considers and criticizes criminal law‘s assumption of the moral autonomy of individuals, showing how that view rests on questionable and obscure Kantian commitments about the self, and proposes a naturalistic alternative developed through a synthetic reading of Adorno‘s and Bhaskar‘s account of the subject in relation to nature and society. As an embodied, emergent, changing subject whose practically rational powers are emergent, polymorphous, and contingent, the subject‘s moral autonomy is dependent on the conditions for experiences of solidarity (...) in four-planar nature. This view makes criminal theory‘s Autonomy Assumption look deeply questionable; autonomy must be a complex, nuanced open question, not an abstract, a priori default assumption. (shrink)

This is a reprint of a book first published by Little, Brown in 1978. George Fletcher is working on a new edition, which will be published by Oxford in three volumes, the first of which is scheduled to appear in January of 2001. Rethinking Criminal Law is still perhaps the most influential and often cited theoretical work on American criminal law. This reprint will keep this classic work available until the new edition can be published.

Having a criminal justice system that imposes sanctions no doubt does deter criminal conduct. But available social science research suggests that manipulating criminal law rules within that system to achieve heightened deterrence effects generally will be ineffective. Potential offenders often do not know of the legal rules. Even if they do, they frequently are unable to bring this knowledge to bear in guiding their conduct, due to a variety of situational, social, or chemical factors. Even if they (...) can, a rational analysis commonly puts the perceived benefits of crime greater than its perceived costs, due to a variety of criminal justice realities such as low punishment rates. These conclusions are reinforced by studies of crime rates following rule changes. Many show no change in deterrent effect. Those that purport to show a deterrent effect commonly have persuasive non-deterrence explanations, such as a change in incapacitative effect. The few studies that segregate deterrent and incapacitative effects tend to reinforce the conclusion that rule formulation has a deterrent effect only in those unusual situations in which the preconditions to deterrence exist. Even there, the deterrent effects are quite minor and unpredictable, hence inadequate grounds to influence criminal law rule making. (shrink)

The state's use of the threat, and imposition, of punishments to regulate conduct is thought (or at least said) by many to be legitimised by the idea that the criminal law's burdens only fall on those who are blameworthy for their conduct. However, the formal concept of 'blameworthiness' needs to be made substantive. This puts various ideas regarding the criminal law's person at the heart of debates about blame, guilt, and responsibility. How is the criminal law's person (...) constructed, by whom, and with what disciplinary norms? How is it threatened by new 'knowledge', and how do those threats play out amongst the various stakeholders who claim the criminal law's person as 'theirs'? To address these and cognate questions, this volume brings together an international group of academics to engage with the criminal law's person from a range of disciplinary perspectives. (shrink)

This contribution aims to explain how European Criminal Law can be understood as constitutive of European identity. Instead of starting from European identity as a given, it provides a philosophical analysis of the construction of self-identity in relation to criminal law and legal tradition. The argument will be that the self-identity of those that share jurisdiction depends on and nourishes the legal tradition they adhere to and develop, while criminal jurisdiction is of crucial importance in this process (...) of mutual constitution. This analysis will be complemented with a discussion of the integration of the first and the third pillar as aimed for by the Constitutional Treaty, which would bring criminal law under majority rule and European democratic control. Attention will be paid to two ground breaking judgements of the European Court of Justice that seem to boil down to the fact that the Court actually manages to achieve some of the objectives of the CT even if this is not in force. This gives rise to a discussion of how the CT may transform European criminal law in the Union to EU criminal law of the Union, thus producing an identity of the Union next to the identities prevalent in the Union. The contribution concludes with some normative questions about the kind of European identity we should aim to establish, given the fact that such identity will arise with further integration of criminal law into the first pillar. (shrink)

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

This is a review of Larry Alexander and Kim Ferzan’s _Reflections on Crime and Culpability_, a sequel to the authors’ _Crime and Culpability_. The two books set out a sweeping proposal for reforming our criminal law in ways that are at once commonsensical and mindbogglingly radical. But even if one is not on board with such a radical experiment, simply thinking it through holds many unexpected lessons: startlingly new insights about the current regime and about novel ways of doing (...) legal theory, some of which are explored in this essay. (shrink)

Five pre-eminent legal theorists tackle a range of fundamental questions on the nature of the philosophy of criminal law. Their essays explore the extent to which and the ways in which our systems of criminal law can be seen as rational and principled. The essays discuss some of the principles by which, it is often thought, a system of law should be structured, and they ask whether our own systems are genuinely principled or riven by basic contradictions, reflecting (...) deeper political and social conflicts. The volume as a whole shows how lively and exciting contemporary legal theory can be. (shrink)

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

This chapter first discusses four categories of international criminal law, namely international aspects of national criminal law, international criminal law stricto sensu, suppression conventions/transnational criminal law, and international standards for criminal justice. It then explains some crosscutting issues that are in the forefront of both historical and contemporary discussions in the area, organizing the material under the rubric of jurisdiction, paying particular attention to how this plays out in a number of suppression conventions. The appropriateness (...) of domestic court jurisdiction is a fundamental issue in relation to most of the subject matter of the first three of the categories of international criminal law and to significant instruments developed in the fourth. The chapter also introduces a recent international criminal treaty, namely 2010 Beijing Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation, that is regarded as the state of the art. (shrink)

Criminal law practices in the US, including policing and incarceration, have drawn heavy criticism for their disproportionate impact on black people, particularly black men. At the same time, some feminist scholars and activists advocate for increases in criminal law responses to sexual assault, including expanding criminal statutes to cover more instances of sexual assault and increasing sentencing guidelines. These reforms are often justified by claims that criminal law should express more feminist values and reject sexist social (...) schemas. This paper makes the case that criminal legal interventions aimed at changing sexist social schemas, such as ‘rape culture,’ are unlikely to be successful because criminal law is effective at maintaining existing social norms, but bad at introducing novel ones. Similarly, in the US, criminality has been ideologically linked to blackness, so attempts to use the stigma of criminality to combat sexual violence are likely to reinforce anti-black racism. The very meaning of a criminal law depends on related social schemas, and the racist social schemas associated with criminality undermine the ability of criminal legal responses to present anti-sexist values. At best, criminal legal reforms aimed at expressing the equal dignity of women will be ambiguous because their meaning is negotiated by existing sexist and racist social schemas. Thus, penal expressivism cannot offer a justification for using criminal law to combat sexual assault. (shrink)

Antony Duff’s The Realm of Criminal Law offers an appealing moral reconstruction of the criminal law. I agree that the criminal law should be understood to predicate punishment upon sufficient proof that the defendant has committed a public wrong for which she is being held to account and censured. But the criminal law is not only about censoring people for public wrongs; it must serve other purposes as well, such as preventing people from committing serious crimes (...) and more generally from violating reasonable regulations. These purposes, and perhaps retributive justice, require the criminal law also to mete out harsh treatment, but only insofar as such treatments are proportional to the culpable wrong committed. The problem for the criminal law is that many mala prohibita crimes consist of a minor wrong but also call for a relatively severe punishment. To accommodate that mismatch, it is necessary to complement the criminal law, as Duff and I conceive of it, with what I call “penal law.” Penal law relies on forfeiture to explain why hard treatment is permissible. The forfeiture must be fair, and it comes with its own proportionality limits. But those limits are not as strict as the limits implicit in the criminal law. It allows for penalties that are harsher than the punishments that could justifiably be meted out for many mala prohibita offenses. One and the same act can count as a crime and a penal infraction, and one and the same criminal justice system can and should handle both crimes and the penal infractions. It is, I think, only in that way that we can accommodate both the need to prevent public wrongdoing and the distinct importance of holding people accountable for the commission of public wrongs. (shrink)

In this article I examine one condition a minimalist theory of criminalization might contain: the criminal law should be used only as a last resort. I discuss how this principle should be interpreted and the reasons we have to accept it. I conclude that a theory of criminalization should probably include the (appropriately construed) last resort principle. But this conclusion will prove disappointing to those who hope to employ this principle to bring about fundamental reform in the substantive (...) class='Hi'>criminal law. I argue that the last resort principle may not help to reverse the growth of the criminal law to any degree that could not be achieved more directly and less controversially by other principles that a theory of criminalization is generally thought to include. Unless we reject others parts of conventional wisdom about crime and punishment, the application of a last resort principle is unlikely to bring about sweeping changes that theorists might have anticipated. (shrink)

Who should define what constitutes ethical and lawful medical practice? Judges? Doctors? Scientists? Or someone else entirely? This volume analyses how effectively criminal law operates as a forum for resolving ethical conflict in the delivery of health care. It addresses key questions such as: how does criminal law regulate controversial bioethical areas? What effect, positive or negative, does the use of criminal law have when regulating bioethical conflict? And can the law accommodate moral controversy? By exploring (...) class='Hi'>criminal law in theory and in practice and examining the broad field of bioethics as opposed to the narrower terrain of medical ethics, it offers balanced arguments that will help readers form reasoned views on the ethical legitimacy of the invocation and use of criminal law to regulate medical and scientific practice and bioethical issues. (shrink)

International criminal law (ICL) is an achievement, but at the same time a challenge to the traditional conception of the principle of legality (_lex praevia_, _scripta_, and _stricta_ – Sect. 1). International criminal tribunals have often based conviction for international crimes on unwritten norms the existence and scope of which they have failed to substantiate. In so doing, they have evaded the objection that they were applying _ex post facto_ criminal laws. This approach, the relaxation of the (...) concept of law by including norms whose existence is doubtful, has apparently served to maintain a concept of strict legality, but it is unsatisfying (Sect. 2). In my opinion, the strict principle of legality that has linked its absolute validity to the positivity of law is not the correct premise. It makes sense to state that positivity and validity do not necessarily go hand in hand (Sect. 3). Applied to ICL, this means that it is neither necessary nor convincing to “conceal” supra-positive law as positive law, as some decisions of the international criminal tribunals do. For this reason, I consider that Radbruch’s formula, consisting in admitting that there are supra-positive limits which positive law must respect in order to be valid, is well-founded (Sect. 4). The path taken by this significant philosopher of law is methodologically convincing, and it squarely faces the problem of the value of positive law. Nevertheless, if we admit Radbruch’s formula and thereby the limited value of positive law (if we claim that the validity of the law depends on it respecting supra-positive minimums of justice), we must also face the problem of the definition of supra-positive values, the epistemological difficulties of having access to them (Sect. 5), and the question of the scope and enforceability of supra-positive law (Sect. 6). In summary, this article aims to explain why Radbruch’s formula offers a convincing conceptual basis for international criminal legality and, in doing so, aims to contribute to the discussion about the foundations of ICL. (shrink)

The article addresses the argument, put forward by Lernestedt, that the proprietor of the ‘criminal-law conflict’ is the community (or the community and the offender) and discusses his proposed theoretical model of criminal law trial. I raise questions regarding the legitimacy of such a model, focusing on four counts. Firstly, I assert that his assumptions about the state the individual and the old/new versions of criminal law theory are society-dependent. Secondly, I address some problems with the concept (...) of community and particularly with the proposed conception of community, which seems to mostly exclude the offender. Thirdly, I question the need for (or added value of) such a proposed conceptual involvement of the community as an actor in the criminal law process and theory. Lastly, some potential problems with the idea of the victim as a mere “representative of us” are mentioned, including the possibly undesirable demands and limitations on the victim’s agency and issues of respect for the victim’s individuality. (shrink)

This book pursues the argument that an attention to emotions produces a more nuanced, and more adequate, feminist account of legal subjectivity. Although the relationship between law and feminism has resulted in a vast body of work, the issue of emotions has not been foregrounded in feminist legal scholarship. Indeed, many feminists have argued that reason and not emotion must provide the foundational basis for all laws and legal reforms; an argument that has led to a division of the legal (...) and the psychic or the emotional into separate and distinct zones. Challenging this separation, the book engages a range of recent criminal law cases and legislation in India in order to advocate a 'feminisation' of law. Drawing on psychoanalytic theory, the book takes up a range of issues surrounding sexual violence in order to propose a shift from viewing law as reason to seeing law as the terrain of messy and contradictory emotional continuums; where legal subjects are viewed in their psychic dimensions, and where law itself is opened up to its own unconscious desires. Foregrounding emotions in this way, the book argues, can offer new insights into the operation of criminal law, and new orientations for feminist ways of responding to, and engaging with, it. This book will be of interest to scholars and students working in the areas of criminal law, legal feminism, and gender studies. (shrink)

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.

Whether or not we call a love-like relationship with robots true love, some people may feel and claim that, for them, it is a sufficient substitute for love relationship. The love relationship between humans has a special place in our social life. On the grounds of both morality and law, our significant other can expect special treatment. It is understandable that, precisely because of this kind of relationship, we save our significant other instead of others or will not testify against (...) her/him. How as a society should we treat love-like relationships humans with robots? Based on the assumption that robots do not have an inner life and are not moral patients, I defend the thesis that this kind of relationship should be protected by criminal law. (shrink)

Criminal Law Conversations provides an authoritative overview of contemporary criminal law debates in the United States. This collection of high caliber scholarly papers was assembled using an innovative and interactive method of nominations and commentary by the nation's top legal scholars. Virtually every leading scholar in the field has participated, resulting in a volume of interest to those both in and outside of the community. Criminal Law Conversations showcases the most captivating of these essays, and provides insight (...) into the most fundamental and provocative questions of modern criminal law. (shrink)

This review article critically examines R. A. Duff and Stuart P. Green’s wide-ranging Philosophical Foundations of Criminal Law. The book captures well a crucial debate at the heart of its topic: is morality a key for understanding criminal law? I first consider legal moralism arguments answering this question in the affirmative and argue they should be rejected. I next consider alternatives to argue that philosophers of criminal law should look beyond legal moralism for more compelling theories about (...) criminal law. (shrink)

The goal of improving public health involves the use of different tools, with the law being one way to influence the activities of institutions and individuals. Of the regulatory mechanisms afforded by law to achieve this end, criminal law remains a perennial mechanism to delimit the scope of individual and group conduct. However, criminal law may promote or hinder public health goals, and its use raises a number of complex questions that merit exploration. This examination of the interface (...) between criminal law and public health brings together international experts from a variety of disciplines, including law, criminology, public health, philosophy and health policy, in order to examine the theoretical and practical implications of using criminal law to improve public health. (shrink)

The essays in Waldron’s Torture, Terror, and Trade-Offs have important implications for debates about the criminalization of terrorism and terrorism-related offences and its consequences for criminal law and criminal justice. His reflections on security speak directly to contemporary debates about the preventive role of the criminal law. And his analysis of inter-personal security trade-offs invites much closer attention to the costs of counter-terrorism policies, particularly those pursued outside the criminal process. But is Waldron right to speak (...) of a ‘welcome the return to the criminal justice model’? This article considers the arguments in favour of prioritizing the prosecution of terrorist suspects and asks if their prosecution can safely proceed without undue hazard to the criminal law and criminal process. (shrink)

The paper criticizes criminal law scholarship for helping to construct and failing to expose analytic structures that falsely claim a higher level of rationality and coherence than current criminal law theory deserves. It offers illustrations of three such illusions of rationality. First, it is common in criminal law discourse for scholars and judges to cite any of the standard litany of "the purposes of punishment" -- just deserts, deterrence, incapacitation of the dangerous, rehabilitation, and sometimes other purposes (...) -- as a justification for one or another liability rule or sentencing practice. The cited "purpose" gives the rules an aura of rationality, but one that is, in large part, illusory. Without a principle defining the interrelation of the "purposes," nearly any rule can be justified by some "purpose of punishment." Thus, a decision maker can switch among distributive principles as needed to provide an apparent rationale for whichever rule the person prefers, even if that preference is not based on rational criteria. A second example is found in a central mechanism for determining an offenderâs blameworthiness: the use of an individualized objective standard. The widely used mechanism avoids the problems acknowledged to attend a strictly objective standard. A person's situation and capacities are central to an assessment of whether a person can be fairly blamed for a violation, and the individualized objective standard allows the decision maker to take these into account. At the same time, the mechanism avoids reversion to a completely subjective standard, which might exempt many blameworthy cases from liability. In reality, however, the mechanism only shifts the form of the problem. Codes that use the individualized objective standard fail to provide a principle by which one can determine those characteristics of an offender with which the objective standard ought to be individualized and those with which it ought not. Without a governing principle, the issue again is left to the discretion of decision makers, with no guidance as to how that discretion is to be exercised. A final illusion obscures whether the criminal justice system is, in fact, in the business of "doing justice." The "criminal justice" system imposes "punishment" and encourages moral condemnation of those found "guilty" of "crimes." But while the system cultivates its doing-justice image, it increasingly shifts to a system of essentially preventive detention, where a violator's sanction is derived more from what is needed to incapacitate him from committing future offenses than to punish him for a past offense. There are great advantages to the deception, but also serious costs and inefficiencies. The paper discusses why some illusions are more objectionable than others and what the existence of such illusions says about modern criminal law scholarship. (shrink)

How can criminal punishment be morally justified? Zisman addresses this classical question in legal philosophy. He provides two maybe surprising answers to the question. First, as for a methodological claim, it argues that this question cannot be answered by philosophers and legal scholars alone. Rather, we need to take into account research from social psychology, economy, anthropology, and so on in order to properly analyze the arguments in defense of criminal punishment. Second, the book argues that when such (...) research is properly accounted for, none of the current attempts to justify criminal punishment succeed. But that does not imply that the state should do nothing about criminal wrongdoing. Rather, the arguments that were supposed to justify criminal punishment actually speak in favor of an alternative approach to criminal law: restitution to the victim and restorative justice. That is to say, the state should coerce offenders to provide restitution for the harm inflicted on victims, and whenever possible restorative approaches should be taken to address criminal wrongdoing. (shrink)

What place, if any, ought cultural considerations have when we blame and punish in the criminal law? Bringing together political and legal theorists Criminal Law and Cultural Diversity offers original and diverse discussions that go to the heart of both legal and political debates about multiculturalism, human agency, and responsibility.

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)

Criminal law is one of the regulatory tools being used in the United States to influence risk behavior by people who have HIV/AIDS. Several different types of laws have been or could be used in this way These include:HIV-specific exposure and transmission laws — i.e., laws that explicitly mention and exclusively apply to conduct by people with HIV;public health statutes prohibiting conduct that would expose others to communicable diseases and/or sexually transmitted diseases ; andgeneral criminal laws governing attempted (...) murder and assault. (shrink)

In the United States today criminal justice can vary from state to state, as various states alter the Modern Penal Code to suit their own local preferences and concerns. In Eastern Europe, the post-Communist countries are quickly adopting new criminal codes to reflect their specific national concerns as they gain autonomy from what was once a centralized Soviet policy. As commonalities among countries and states disintegrate, how are we to view the basic concepts of criminal law as (...) a whole? Eminent legal scholar George Fletcher acknowledges that criminal law is becoming increasingly localized, with every country and state adopting their own conception of punishable behavior, determining their own definitions of offenses. Yet by taking a step back from the details and linguistic variations of the criminal codes, Fletcher is able to perceive an underlying unity among diverse systems of criminal justice. Challenging common assumptions, he discovers a unity that emerges not on the surface of statutory rules and case law but in the underlying debates that inform them. Basic Concepts of Criminal Law identifies a set of twelve distinctions that shape and guide the controversies that inevitably break out in every system of criminal justice. Devoting a chapter to each of these twelve concepts, Fletcher maps out what he considers to be the deep structure of all systems of criminal law. Understanding these distinctions will not only enable students to appreciate the universal fundamental ideas of criminal law, but will enable them to understand the significance of local details and variations. This accessible illustration of the unity of diverse systems of criminal justice will provoke and inform students and scholars of law and the philosophy of law, as well as lawyers seeking a better understanding of the law they practice. (shrink)

In whose voice does the criminal law speak, and why does it matter? Miriam Gur-Arye argues that the answer to the first question depends on the kind of duty violated by the crime at issue. In some cases (say, election fraud or tax evasion), the criminal law speaks in the voice of the polity—but in other cases (say, murder or rape), it speaks in the voice of human beings. Or so argues Gur-Ayre. Not surprisingly, perhaps, a lot depends (...) on what one means by the voice of the criminal law. In this paper, I defend two related arguments. First, the criminal law typically claims to speak in the voice of the polity, even if, in practice, it often fails to do so. Second, where the criminal law does speak in the voice of the polity, its doing so can contribute to its own justification. (shrink)

: The paper discusses the contribution that the neuroscience of action can offer to the legal understanding of action control and responsibility in the case of adult individuals. In particular, we address the issues that follow. What are the cognitive capacities that agents must display in order to be held liable to punishment in criminal law? Is the legal model of liability to punishment compatible with a scientifically informed understanding of voluntary behaviour? To what extent should the law take (...) into account people’s subjective feelings about their own actions? As a result of our analyses, we indicate some areas where the contribution of the neuroscience of action to the law is potentially relevant. We focus on the subjectivity mechanisms of action control, specifically the requirement that the agent must violate the law voluntarily in order to be held responsible, and on the factors that modulate the wrongdoer’s experience of agency. Overall, we advocate more cross-disciplinary work, aimed to bridge the gap between conceptual boundaries, on the theme of responsibility for actions. Keywords : Responsibility; Neurolaw; Sense of Agency; Criminal Law; Criminal Liability La responsabilità tra neuroscienza e diritto penale. La componente di controllo dell’imputabilità penale Riassunto : L’articolo discute il contributo che la neuroscienza dell’azione può offrire ai temi del controllo dell’azione e della responsabilità in ambito legale, nel caso degli individui adulti. In particolare, ci occuperemo delle questioni che seguono. Quali sono le abilità cognitive che un agente deve possedere per esser considerato penalmente responsabile e quindi punibile? Il modello legalistico della responsabilità è compatibile con il modello scientifico-naturalistico del comportamento umano? Fino a che punto variazioni nel senso di controllo soggettivo sulle azioni dovrebbero essere considerate un parametro rilevante in sede penale? Sulla scorta della nostra analisi, indicheremo alcune aree nelle quali il contributo della neuroscienza dell’azione a questioni legate al tema della responsabilità legale potrebbe rivelarsi rilevante. L’articolo si concentra sui meccanismi che regolano il senso soggettivo di controllo dell’azione – in particolare il requisito secondo il quale l’agente deve violare la legge volontariamente per essere ritenuto responsabile –, e sui fattori che modulano il senso di agentività del colpevole. In conclusione, difenderemo l’appropriatezza di una più ampia riflessione multi-disciplinare volta a ridurre le incompatibilità fra differenti approcci al tema della responsabilità per le nostre azioni. Parole chiave : Responsabilità; Neurodiritto; Senso di agentività; Diritto penale; Imputabilità penale. (shrink)

In Ignorance of Law, Doug Husak defends a version of legal moralism on which ‘we should recognize a presumption that the criminal law should…be based, on conform to, or mirror critical morality’. Here I explore whether substantive criminal law rules should directly mirror not moral blameworthiness, but a distinct legal notion of criminal culpability – akin to moral blameworthiness but refined for deployment in legal systems. Contra Husak, I argue that the criminal law departing from the (...) moral ideal embodied in the standard of moral blameworthiness is not always to be regretted. After showing how criminal culpability might come apart from moral blameworthiness, I argue that my alternative to Husak’s view has practically interesting upshots. In particular, it allows us to resist Husak’s central conclusions about the exculpatory force of normative ignorance. There are good reasons for the criminal law to make certain charitable presumptions about citizens as competent agents, which the standard of moral blameworthiness needn’t similarly embody, and this calls into question Husak’s argument for the claim that normative ignorance exculpates. (shrink)