본고에서는 한강학파가 임진난이라는 현실적 고통에 어떠한 방식으로 직면해 있으며, 그들이 이를 대응하고 극복하기 위해 어떠한 노력을 해나갔는지에 대한 양상을 살펴보는 것을 목적으로 한다. 한강학파는 조선 중기 대구권에서 주로 활동한 한강 정구를 중심으로 형성된 학파를 말한 다. 정구는 경(敬)을 통한 마음 수양과 의(義)를 통한 사회실천의 전통을 모두 받아들이면서 자 신의 학문적 토대로 삼았다. 그는 학문적 회통성과 개방성뿐만 아니라 경의협지의 수양 정신을 사회적 실천으로 확장시켜 학문의 실천성까지 담보하고자 하였다. 그리고 이러한 특징은 특히 임진난이라는 위기 상황을 겪으면서 구체화된다. 이에 한강학파는 임진난 당시 국난을 (...) 극복하 기 위한 직간접적인 노력을 통해 영남지역을 주도하는 세력으로 그 위상이 급부상하게 된다. 따라서 본고에서는 임진난 전후로 정구와 그의 문인들이 임진난이라는 위기상황을 대응 하고 극복하는 양상을 통해 당시의 학계를 주도한 그들의 학문의 정체성과 연속성을 확인해 보고자 하였다. 이에 따라 세 가지의 카테고리를 통해 살펴보고자 한다. 먼저 한강학파의 성 장과 그들의 학문이 형성된 사상적 기반을 살펴본다. 한강학파는 정구의 사상적 흐름을 이 어 받고 있는데, 정구의 학문을 소개하면서 한강학파의 학문적 연원을 살펴본다. 그 다음으 로는 임진난 당시 의병활동의 전개 양상과 피난 생활 및 문학적 대응 양상을 살펴본다. 그들 의 처세 양상은 달랐지만 필자는 이들 모두 국난을 극복하기 위한 직간접적인 양상으로 보 았다. 임진난 이후 한강학파는 향촌사회 중심으로 사회재건활동에 진력하는데, 이 또한 그 들의 강한 사회적 실천성을 확인할 수 있는 하나의 자료가 될 것이다. (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)

(No abstract is available for this citation).

David Luban identifies a tension between Arendt's conception of ethnic identification in a context of persecution and her conception of humanity. That tension pertains to the reality—or realities—that Arendt addresses: the moral reality of her Bildung that appears throughout her work, and is centered on the “dignity of man,” on the one hand, and the divisive, “political” reality that she was forced to face when “attacked as a Jew,” on the other. By implicitly accepting that in a context of persecution (...) one cannot escape the framing relevance of the “political” —an idea that is also present in her imaginary condemnation speech of Eichmann—Arendt betrays a fundamental theme of her work: “forgiveness” and the inherent possibility of a “new beginning.”. (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 article I explore ways to argue about punishment of personal representations in virtual reality. I will defend the idea that such punishing might sometimes be morally required. I offer four different lines of argument: one consequentialistic, one appealing to an idea of appropriateness, one using the notion of organic wholes, and one starting from a supposed inability to determine the limits of the extension of the moral agent. I conclude that all four approaches could, in some cases, justify (...) punishing a virtual reality representation; an avatar. As a consequence of my conclusion, I suggest that our institutionalized criminal justice system must be broadened in scope and punitive measures, in order to cover the new and difficult cases arising in virtual reality. (shrink)

There are a number of considerations, including ethical and clinical or diagnostic factors, in utilizing the diagnosis of posttraumatic stress disorder in criminal proceedings. The reliability and validity of the diagnosis may be questioned. Legal precedent may consider extant diagnostic criteria for PTSD and comorbid diagnoses. However, these diagnostic criteria are often in flux considering new research findings. For example, the introduction of the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association, (...) includes some changes in the PTSD diagnostic criteria. How will this affect interpretation of past legal judgments? Moreover, PTSD has significant psychiatric comorbidity, e.g., substance abuse, which in itself may influence violent behavior and its consequences. Some of these comorbid diagnoses also have changes in their diagnostic criteria. The introduction of biological tests in the assessment of PTSD will likely facilitate more objective diagnosis. (shrink)

Given the basic tenets of just war theory and those of United States law regard- ing compensatory justice, it is argued that the U.S. invasion of Iraq from 2003-present is morally unjust and that the U.S. owes substantial reparations to Iraq.

Antidoping policy regulates and punishes the use of substances that are listed on a Prohibited List (PL). These substances are colloquially known as ‘performance-enhancing substances’. There is very little empirical evidence of enhancement for most of the substances on the PL raising the possibility that the perceived enhancement of performance experienced by an athlete is a placebo effect. A placebo effect is a response to an inert substance that is strongly influenced by psychological and social cues in the surrounding environment. (...) It is our contention that, given the lack of proper empirical testing of the substances on the PL, it is in fact the appearance of a substance on the PL that has the strongest performance-enhancing effect in elite athletes. This disconnect between science and WADA’s code raises the question of what we really object to: real performance enhancement achieved using substances on the PL or performance enhancement that occurs because WADA has told us that the substance will enhance performance by placing it on the PL? In this case, antidoping policy would punish those who believe the performance-enhancing myth at the heart of the PL thus leading to a deeply flawed policy that creates its own victims. (shrink)

In the decision to the British appeals case Re H, Judge Lord Nicholls, talking about criminal behavior, stated that “that the more serious the allegation the less likely it is that the event occurred”. There is actually quite a bit of discussion about the conclusions that should be drawn from this observation in the literature, but I have not found much discussion of the question whether the observation is right. I find this surprising, and in this essay I want to (...) inspect this question. (shrink)

Crimes of Reason brings together expanded and updated versions of some of Braude’s best previously published essays, along with new essays written specifically for this book.

Given the prevalence of hate ideology, a concerted, multipronged effort to combat it clearly seems in order. In this essay, I explore whether hate crime legislation is a permissible and advisable component of this effort. In particular, I consider whether it is morally permissible to impose enhanced punishments upon criminals who select their victims at least in part because of an animus toward members of the group to which the victim belongs. Would it be permissible to punish more severely a (...) White supremacist who attacks a person only because she is Black, for instance, or an anti-Semitic thief who selects her victims at least in part because they are Jewish? After sketching a preliminary defense of this type of hate crime legislation, I note some potential concerns, including vexing questions about the likely effects of imposing such laws under the present, nonideal circumstances in the United States. (shrink)

It is rather uncontroversial that gender should have no influence on treating others as equal epistemic agents. However, is this view reflected in practice? This paper aims to test whether the gender of the testifier and the accused of assault is related to the perception of a testimony’s reliability and the guilt of the potential perpetrator. Two experiments were conducted: the subjects (n = 361, 47% females, 53% males) assessed the reliability of the testifier in four scenarios of assault accusation, (...) in which the only difference was the gender of the people presented. During the study, we have observed dependencies of gender and ascription of reliability, but only marginal differences in guilt attribution. The results of our research may constitute an argument for the existence of different epistemic status endowed on people depending on their gender and existing gender stereotypes. Our results suggest that gender bias may be situated at a deeper level than the linguistically triggered representation. (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.

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.

The suggestion that crime be treated as a public health problem instead of being treated retributively provokes unease for two reasons. Firstly, it is thought to foster impersonal treatment, which is “objectifying” or “dehumanizing.” I argue that practices are problematically impersonal when they bypass or undermine an agent’s ability to take responsibility. However, there is a difference between taken responsibility and retributive responsibility. Skepticism about the latter does not entail skepticism about the former. Skeptics about retributive desert still have strong (...) moral reasons to condemn practices that undermine taken responsibility, so it need not have these dehumanizing implications. Secondly, the association of medicine and crime has a dark history. While this is true, this is largely because medicine has a dark history. Instead of striving to limit things that fall within the boundaries of public health, I argue that the solution is to take a more ethical approach to public health. (shrink)

Two predictions concerning the perceived severity of crimes can be derived from evolutionary theory. The first, arising from the theory of inclusive fitness, is that crimes in general should be viewed as more serious to the degree that the victim is genetically related to the perpetrator. The second, arising from the deleterious effects of inbreeding depression, is that heterosexual sexual coercion should be perceived as more serious the closer the genetic relationship of victim and perpetrator, particularly when the (...) victim is a female of fertile age. Two hundred and thirty university students estimated the magnitude of the severity of brief crime descriptions in three separate studies. In the first two, the biological kinship of victim and perpetrator was varied, and in the third, the hypothetical genetic relatedness of the subject and the fictitious victim was varied. All three studies found the linear relationships between biological kinship and perceived crime severity predicted by theory. (shrink)

International criminal law (ICL) has traditionally overlooked sexual and gender-based violence (SGBV) and struggles to understand it. Prosecutions have been largely inefficient and not reflective of gender harms. The Rome Statute requires interpreting SGBV as a social construction (article 7(3)), in consistency with international human rights law (IHRL) and without discrimination (article 21(3)). There is, however, little guidance to implement these approaches. This article argues that intersectionality, an IHRL-based approach that reveals compounded discrimination, is an efficient tool to interpret SGBV (...) and, therefore, should be integrated in ICL. The article traces the origins of intersectionality in feminism and its recognition by IHRL dealing with violence against women. It establishes the applicability of intersectionality in ICL that it demonstrates with a comparative analysis of the Lubanga and Ntaganda cases. The findings show that intersectionality suits ICL’s specific needs which allows labelling and explaining some of those contributions throughout the judicial process. (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)

In this article, I comment on Simester and von Hirsch’s theory of criminalization and discuss general principles of criminalization. After some brief comments on punishment theories and the role of moral wrongdoing, I examine main lines of contemporary criminalization theories which tend to focus on the issues of harm, offense, paternalism and side-constraints. One of the points of disagreement with Simester and von Hirsch concerns the role of the harm principle. I rely on a straightforward normative concept of “rights of (...) others,” not in the sense of rights granted in positive law but in the sense of rights which are to be justified in political philosophy. With a rights-centered rather than a harm-centered approach, a prima facie reason for criminalization is the violation of others’ rights. It is unnecessary to develop a separate category of “offense to others,” and paternalistic interventions can be criticized straightforwardly because rights can be waived. (shrink)