In societies of high legal culture, criminal law is regarded as a protective and repressive measure of the state, as an imperative of crime and inevitable punishment (as a strict rule). Therefore, the article attempts to show the fact that the entirety of the provisions and norms of criminal law, consolidated in a modern democratic state under the rule of law (or, at least, a state that is attempting to become such a state), allows for the assertion that (...) the purpose of criminal law is coordination or, at least, the balance of the interests of conflicting subjects—the victim and the culprit, the culprit and the state. Thus, by means of criminal law, one can try to attain legal concord in seemingly irreconcilable situations. The reality of such striving is confirmed by court practice and statistics in criminal justice. The article analyses the origin of the reconciliation function, essentially a new aspect of criminal law. A position is formed that the fundamentals of such a function of criminal law are “laid” by the provisions of the Preamble to the Constitution of the Republic of Lithuania that the striving of the Nation is an open, just and harmonious civil society and a state under the rule of law. For the implementation of these provisions, one makes use of the possibilities of penal law-making and respectively corrects the penal policy. (shrink)

Professor Robinson provides a new critique of the often neglected problem of classification within the criminal law. He presents a discussion of the present conceptual framework of the law, and offers explanations of how and why formal structures do not match the operation of law in practice. In this scholarly exposition of applied criminal theory, Robinson argues that the current operational structure of the criminal law fails to take account of its different functions. He goes on to (...) suggest new sample codes of criminal conduct and criminal adjudication which mark a real departure from the pragmatic approach which presently dominates code-making. This rounded exploration of the structure of systems of criminal law is an important work for law teachers and policy makers world-wide. (shrink)

In A Moral Theory of Political Reconciliation, Colleen Murphy devotes a full chapter to arguing that international criminal trials make significant contributions to political reconciliation within post-conflict and transitional societies. While she is right to claim that these trials serve an important function, I take issue with her with respect to what that important function is. Whereas Murphy focuses on the contributions international criminal prosecutions might make to political reconciliation within the borders of (...) transitional societies, I claim instead that their primary function is to restore order at the international level and to dispense justice. The aims of justice are not always consistent with the aims of reconciliation. Moreover, several features of international criminal trials should give us pause with respect even to how well, in fact, they manage to serve the ends of international justice. (shrink)

Professor Robinson provides a new critique of the often neglected problem of classification within the criminal law. He presents a discussion of the present conceptual framework of the law, and offers explanations of how and why formal structures do not match the operation of law in practice. In this scholarly exposition of applied criminal theory, Robinson argues that the current operational structure of the criminal law fails to take account of its different functions. He goes on to (...) suggest new sample codes of criminal conduct and criminal adjudication which mark a real departure from the pragmatic approach which presently dominates code-making. This rounded exploration of the structure of systems of criminal law is an important work for law teachers and policy makers world-wide. (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)

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.

The evolution of criminal law in Western legal systems is often portrayed as a path leading from objective to subjective notions of criminal responsibility. By examining the historical development of the notions of subjective responsibility, this article suggests that the function of a wrongdoer’s subjective mental state, in both its substantive and procedural aspect, as an element in the process of attributing criminal responsibility, remains much the same today as it was in antiquity. This is indicated (...) by what subjectivity, as an essential condition of culpability, is said to imply: the distinction between intentional and unintentional acts. Although the notions of intent and malice aforethought are attested to in various sources on ancient Athenian law, there are several kinds of cases in which the role played by these aspects—traditionally referred to as mens rea —remain unsolved in contemporary jurisprudence and legal practice. Yet despite the difficulties of establishing facts in particularly complex criminal cases, setting the boundary between “intentional” and “unintentional” remains crucially important in determining criminal responsibility and thus in distinguishing the “licit” from the “illicit,” which is the very foundation of the rule of law. (shrink)

Current International Criminal Law suffers from at least four theoretical shortcomings regarding its ‘concept and meaning’, ‘ius puniendi’, ‘overall function’ and ‘purposes of punishment’. These issues are intimately interrelated; in particular, any reflection upon the last two issues without having first clarified the ius puniendi would not make sense. As argued elsewhere, in an initial contribution towards a consistent theory of ICL, the ius puniendi can be inferred from a combination of the incipient supranationality of the value-based world (...) order and the world citizens’ fundamental human rights predicated upon a Kantian concept of human dignity. On this basis, it is now possible to examine the overall function of ICL. Given the fact that ICL has not yet achieved the status of an autonomous discipline, the inquiry must start with a discussion of national theories of criminalisation. The article focuses on the two most important theories of criminalisation, namely the theories of protection of Rechtsgüter and the prevention of harm. Next, it examines whether and how these national theories can be transferred to ICL. (shrink)

Recent years have seen mounting challenge to the model of the criminal trial on the grounds it is not cost-effective, not preventive, not necessary, not appropriate, or not effective. These challenges have led to changes in the scope of the criminal law, in criminal procedure, and in the nature and use of criminal trials. These changes include greater use of diversion, of fixed penalties, of summary trials, of hybrid civil–criminal processes, of strict liability, of incentives (...) to plead guilty, and of preventive orders. The paper will assess the implications of these changes for the function of the criminal law, assessing the reasons behind them, and examining whether or not they are to be welcomed. Identifying the larger import of these changes draws attention to the changing relationship between state and citizen as well as changes in the nature of the state itself. These can in turn be attributed to a jostling among the different manifestations of the authoritarian state, the preventive state, and the regulatory state. These changes have profound normative implications for a liberal theory of the criminal law that require its re-articulation and its defence. A modest start may be to insist that where the conduct is criminal and the consequences are punitive the protections of criminal procedure and trial must be upheld. (shrink)

In Responsible Brains, Hirstein, Sifferd and Fagan apply the language of cognitive neuroscience to dominant understandings of criminal responsibility in criminal law theory. The Authors make a compelling case that, under such dominant understandings, criminal responsibility eventually ‘translates’ into a minimal working set of executive functions that are primarily mediated by the frontal lobes of the brain. In so arguing, the Authors seem to unquestioningly accept the law’s view of the “responsible person” as a mixture of cognitive (...) capacities and mechanisms—thereby leaving aside other fundamental aspects of individuals’ human agency. This commentary article offers a critique of the Authors’ rationalist and individualist approach. The critique can be summarized through the following claim: We humans, as responsible beings, are more than our executive functions. This claim articulates through four main points of discussion: role of emotions in moral judgments and behavior; executive functions and normative criteria for legal insanity; impact of adverse situational factors on executive functions; Authors’ account of punishment and, especially, rehabilitation. (shrink)

I argue that international criminal trials can contribute to political reconciliation by fostering the social conditions required for law’s efficacy.

What makes someone responsible for a crime and therefore liable to punishment under the criminal law? Modern lawyers will quickly and easily point to the criminal law's requirement of concurrent actus reus and mens rea, doctrines of the criminal law which ensure that someone will only be found criminally responsible if they have committed criminal conduct while possessing capacities of understanding, awareness, and self-control at the time of offense. Any notion of criminal responsibility based on (...) the character of the offender, meaning an implication of criminality based on reputation or the assumed disposition of the person, would seem to today's criminal lawyer a relic of the 18th Century. In this volume, Nicola Lacey demonstrates that the practice of character-based patterns of attribution was not laid to rest in 18th Century criminal law, but is alive and well in contemporary English criminal responsibility-attribution. Building upon the analysis of criminal responsibility in her previous book, Women, Crime, and Character, Lacey investigates the changing nature of criminal responsibility in English law from the mid-18th Century to the early 21st Century. Through a combined philosophical, historical, and socio-legal approach, this volume evidences how the theory behind criminal responsibility has shifted over time. The character and outcome responsibility which dominated criminal law in the 18th Century diminished in ideological importance in the following two centuries, when the idea of responsibility as founded in capacity was gradually established as the core of criminal law. Lacey traces the historical trajectory of responsibility into the 21st Century, arguing that ideas of character responsibility and the discourse of responsibility as founded in risk are enjoying a renaissance in the modern criminal law. These ideas of criminal responsibility are explored through an examination of the institutions through which they are produced, interpreted and executed; the interests which have shaped both doctrines and institutions; and the substantive social functions which criminal law and punishment have been expected to perform at different points in history. (shrink)

Neuroimaging showing brain abnormalities is increasingly being introduced in criminal court proceedings to argue that a defendant could not control his behavior and should not be held responsible for it. But imaging has questionable probative value because it does not directly capture brain function or a defendant’s mental states at the time of a criminal act. Advanced techniques could transform imaging from a coarse-grained measure of correlations between brain states and behavior to a fine-grained measure of causal (...) connections between them. Even if this occurs, bias and other attitudes may unduly influence jurors’ interpretation of the data. Moreover, judges’ decisions about whether neuroimaging data is legally relevant and admissible are normative decisions based on more than empirical evidence. Advanced neuroimaging will better inform assessments of criminal responsibility but will not supplant or explain away the psychological and normative foundation of the criminal law. (shrink)

International Criminal Law and Philosophy is the first anthology to bring together legal and philosophical theorists to examine the normative and conceptual foundations of international criminal law. In particular, through these essays the international group of authors addresses questions of state sovereignty; of groups, rather than individuals, as perpetrators and victims of international crimes; of international criminal law and the promotion of human rights and social justice; and of what comes after international criminal prosecutions, namely, punishment (...) and reconciliation. International criminal law is still an emerging field, and as it continues to develop, the elucidation of clear, consistent theoretical groundings for its practices will be crucial. The questions raised and issues addressed by the essays in this volume will aid in this important endeavor. (shrink)

The state has always authoritatively used criminal law to give effect to its policy of condemning acts either antisocial or unacceptable to the conscience of the law and society. The existence of criminal law is well justified on grounds of ‘social welfare’ or “reinforcement of those values most basic to proper social functioning”. This initiates or sustains the process of criminalization. The relativity of ‘social welfare’ makes law ‘dynamic’ as well as ‘varying’, vis-à-vis its ambit and scope. Current (...) scholarship is critical of what is referred to as the trend of overcriminalization or rapid increase in criminalizing of acts, as leading to ‘uncertainty’ in criminal law. The rationale for such a critique is that there are activities that need not be labeled as offences if they do not possess the potential to cause damage that criminal law seeks to protect. In light of the overcriminalization critique, this paper examines the criminalization of certain offences labeled as public welfare offences. (shrink)

Current International Criminal Law (ICL) suffers from at least four fairly serious theoretical shortcomings. First, as a starting point, the concept and meaning of ICL in its different variations must be clarified (‘the concept and meaning issue’). Second, the question of whether and how punitive power can exist at the supranational level without a sovereign (‘the ius puniendi issue’) must be answered in a satisfactory manner. Third, the overall function or purpose of ICL as opposed to national (...) class='Hi'>criminal law (‘the overall function issue’) must be more convincingly explained. Fourth, the purposes of punishment in ICL, as opposed to the traditional purposes discussed in national criminal law, must be elaborated (‘the purposes of punishment issue’). There is a partly vertical and partly horizontal relationship between these issues. It is, for example, of course impossible to reflect upon ius puniendi, overall function and purposes of punishment without having clarified the concept of ICL in the first place. Also, a treatment of overall function and purposes of punishment seems to be predicated on the justification of the ius puniendi. Indeed, the lack of a satisfactory answer to the ius puniendi issue is maybe the most important theoretical weakness of current ICL. This article therefore aims to demonstrate that a supranational ius puniendi can be inferred from a combination of the incipient supranationality of the world order (understood normatively as an order of values) and the concept of a world society composed of world citizens whose law—the ‘world citizen law’ (‘Weltbürgerrecht’)—is derived from universal, indivisible and interculturally recognized human rights predicated upon a Kantian concept of human dignity. The incipient world order and the world society are represented by the international community (to be understood as a community of values) which becomes the holder of the ius puniendi. (shrink)

Beginning with the premise that the principal function of a criminal trial is to find out the truth about a crime, Larry Laudan examines the rules of evidence and procedure that would be appropriate if the discovery of the truth were, as higher courts routinely claim, the overriding aim of the criminal justice system. Laudan mounts a systematic critique of existing rules and procedures that are obstacles to that quest. He also examines issues of error distribution by (...) offering the first integrated analysis of the various mechanisms - the standard of proof, the benefit of the doubt, the presumption of innocence and the burden of proof - for implementing society's view about the relative importance of the errors that can occur in a trial. (shrink)

Antony Duff argues that the criminal law’s characteristic function is to hold people responsible. It only has the authority to do this when the person who is called to account, and those who call her to account, share some prior relationship. In systems of domestic criminal law, this relationship is co-citizenship. The polity is the relevant community. In international criminal law, the relevant community is simply the moral community of humanity. I am sympathetic to his community-based (...) analysis, but argue that the moral community must play a greater role in the domestic case and that the collection of individual political communities must play a greater role in the international case. (shrink)

The question of excusing in law has been the subject of different philosophical theories of responsibility. These theories attempt to shed light on the nature and function of legal excuses and to justify their role in the criminal justice system. This paper examines the issue of excusing in law from two theoretical standpoints: the character theory and the choice theory of responsibility. The two theories differ on the kinds of causes of action they each find to provide the (...) basis for holding people responsible. The character theory focuses on character, the choice theory on choice and the capacity to choose. Following a brief introduction in which the fundamental distinction between justification and excuse is outlined, the character theory of responsibility is explained with special attention being paid to the work of George Fletcher, which has made a significant impact on the field of criminal law philosophy in recent years. Then follows a critical discussion of the choice theory as elaborated by H.L.A. Hart, one of the most influential legal theorists of our times. The paper concludes that the character theory of responsibility, by drawing attention to what lies behind and motivates actual choices, offers a better basis for interpreting the moral significance of human actions and for explaining our actual blaming judgements regarding those actions. (shrink)

This article seeks to contribute towards the emergent field of law and emotion by offering a multi-perspectival study that combines legal, philosophical and empirical considerations into an interdisciplinary research on shame in the German courts of lower and middle instance. On the basis of this joint theory, the study proposes the existence of law-relevant emotions, whose relevance could be argued phenomenologically and validated empirically; hence, the main claim of this study: in the courtroom emotions are communicated for specific procedural purposes. (...) The interdisciplinary nature of the study enables us to determine the role and function of shame in an institutional setting, its relation to other emotions and, more importantly, obtain the sense of shame as it acquires a specific institutional relevance. (shrink)

This article puts forward solutions to some of the ethical and legal dilemmas posed in the current discussion on how to program crash algorithms in autonomous or self-driving cars. The first part of the paper defines the scope of the problem in the criminal legal field, and the next section gives a critical analysis of the proposal to always prioritise the interest of the occupant of the vehicle in situations with conflict of interests. The principle of minimizing social damage (...) as a model for configuring self-driving cars is examined in the third section. Despite its apparent plausibility, within the framework of a liberal legal system that recognises humans as free agents who have rights and responsibilities, maximizing the function of social utility does not justify harmful interference into a person’s legal sphere. Therefore, in the fourth part, the author argues the need to program the crash algorithms of autonomous cars based on a deontological understanding of the system of justifications in criminal law. The solution to the dilemma lies in a prior analysis of the legal positions of all agents involved in the conflict, from a perspective of the principles of autonomy and solidarity as the core of the system of justifications. (shrink)

: Hisbah is the most important institution in a society and nation.Enforcement parties are those who are directly involved in executing this. Incarrying out their duties, they bear heavy responsibility because it involvesthe rights of Allah and the rights of human. Hisbah implies theimplementation of al-amr bi-l-maʿrūf when it is clear thatit is abandoned, and wa-n-nahy ʿani-l-munkar when itis clear that it is done. This study is based on the concept of Hisbah in SharīʿahLaw which is of a general and (...) widespread aspect of enjoining good andpreventing evil. Literature reviews and library searches have been conductedintensively to clarify the principles of hisbah. Additionally, descriptiveand content analysis of textual content was done on the provisions of lawsand regulations as well as guidelines on the prevention of sharīʿah crimeparameters in Malaysia. In general, our country has implemented the conceptof hisbah in its own form without the branding of an institution specifically as“the institution of hisbah”. The roles and functions of hisbah are given to theSharīʿah Enforcement Division, Islamic Religious Department in the states. (shrink)

This paper investigates, from a philosophical perspective, whether high functioning autists are legally responsible for the crimes they may commit. We do this from the perspective of the Croatian legal system. According to Croatian Criminal Law, but also criminal laws adopted in many other countries, the legal responsibility of the person is undermined due to insanity when two conditions are satisfied. The first may be called the incapacity requirement. It states that a person, when committing the crime, suffers (...) cognitive or volitional incapacities or limited capacities that are relevant for exculpation. The second, we may call the mental disorder requirement, which states that these exculpatory incapacities are due to the presence of a mental disorder. In this paper we focus on the incapacity requirement. The review of the studies on executive functions deficits associated with high-functioning autism suggests that many autists should not be held categorically responsible for the crimes they may commit. Nonetheless, we argue that these impairments in executive functions generally do not provide an unqualified excuse. (shrink)

Moral and legal philosophy are too entangled: moral philosophy is prone to model interpersonal moral relationships on a juridical image, and legal philosophy often proceeds as if the criminal law is an institutional reflection of juridically imagined interpersonal moral relationships. This article challenges this alignment and in so doing argues that the function of the criminal law lies not fundamentally in moral blame, but in regulation of harmful conduct. The upshot is that, in contrast to interpersonal relationships, (...) the criminal law cannot lose its standing to blame through institutional analogues of hypocrisy, complicity, and meddling. Rather, certain forms of structural and severe historical and contemporary injustice point to the question of the overall legitimacy of state authority. (shrink)

Legal scholars and theorists have recently drawn a more sustained attention to the link between international human rights law (hereafter IHRL) and international criminal law (hereafter ICL). This concerns both positive and more normative accounts of the link. Whether positive or normative, the predominant approach to constructing the link issubstantive. This overlap is normatively justified in similar terms by reference to a subset of moral human rights. In this paper, I offer an alternative to the substantive approach. After identifying (...) two flaws in the substantive approach (the problem ofthresholdand the problem ofethical neutrality), I defend what I call astructuralaccount by focusing on duty‐holders. I start by reconstructing two structural characteristics common to IHRL and ICLquainternational legal regimes: who has theauthorityto address violations of IHRL and ICL, and who can beliablefor those violations. I then infer thatpublic authority(functionally construed) constitutes the common structural core of IHRL and ICL. I rely on the extraterritorial application of IHRL and on the collective dimension of ICL violations to further support the argument. I finally offer an argument explaining the normative point of those structural features. I hold that IHRL and ICL (their adjudicative and liability regimes) are both necessary (but clearly not sufficient) to render this exercise of public authority legitimate to its subjects. (shrink)

Organ trafficking and trafficking in persons for the purpose of organ transplantation are recognized as significant international problems. Yet these forms of trafficking are largely left out of international criminal law regimes and to some extent of domestic criminal law regimes as well. Trafficking of organs or persons for their organs does not come within the jurisdiction of the ICC, except in very special cases such as when conducted in a manner that conforms to the definitions of genocide (...) or crimes against humanity. Although the United States Code characterizes trafficking as a transnational crime with national implications, (22 U.S.C. § 7101(b)(24) (2010)), trafficking is rarely prosecuted in domestic courts. It has thus functioned in practice largely as what might be judged a stateless offense, out of the purview of both international and national courts. Yet these forms of organ trafficking remain widespread—and devastating to those who are its victims. In this article, we begin by describing what is known about the extent of organ trafficking and trafficking in persons for the purpose of removal of organs. We then critically evaluate how and why such trafficking has remained largely unaddressed by both international and domestic criminal law regimes. This state of affairs, we argue, presents a missed chance for developing the legitimacy of international criminal law and an illustration of how far current international legal institutions remain from ideal justice. (shrink)

This chapter examines the use of necessity as an excuse in criminal law and notes that in this context necessity functions as a general exception to preestablished rules; in this area necessity is potentially at its most dangerous. It examines the various constraints—both ad hoc and principled —that international criminal law deploys to restrict the application of the necessity defense so as to mitigate its over-permissiveness. It considers the most aggressive containment strategy—a wider prohibition on the necessity defense (...) for principled reasons. The chapter concludes that the principled constraints have several normative advantages over the ad hoc constraints. (shrink)

This paper considers the interpretive significance of the intersecting relationships between different conceptions of responsibility as they shift over space and time. The paper falls into two main sections. The first gives an account of several conceptions of responsibility: two conceptions founded in ideas of capacity; two founded in ideas of character, and one founded in the relationship between an agent and the outcome which she causes. The second main section uses this differentiated conceptual account to analyse and interpret certain (...) aspects of the contemporary criminal law of England and Wales. In conclusion, the paper considers a number of hypotheses about what the evidence of certain shifts in the relationship between the three families of responsibility-conception can tell us about the current state and significance of criminal law among other systems of social governance. (shrink)

This article explores different dimensions of the concept of negligence in the law. The first sections focus on the fundamental distinction between conduct negligence, a conception that dominates tort law; and cognitive negligence, a conception that is much more important in criminal law. The last major section identifies five significant institutional functions served by a legal negligence standard: expressing a legal norm in the form of a standard rather than a rule; personifying fault; empowering the trier of fact to (...) give content to the standard; creating a secondary legal norm parasitic on a primary legal norm; and distinguishing grades of fault. These functions reveal the distinctive significance of negligence, but also disclose numerous problems that the use of such a legal standard can pose. Careful analysis of these different dimensions of negligence clarifies certain misconceptions and has important implications. For example, the question whether "negligence" is an appropriate minimum standard of liability is unanswerable until we identify the type of negligence at issue and its role in norm-definition. Similarly, comparing negligenceto supposedly "more serious" forms of fault, such as recklessness, knowledge, and purpose, is treacherous and sometimes amounts to comparing apples and oranges. A better understanding of the different conceptions of negligence and of the distinctive institutional functions of a legal negligence standard can facilitate the development of more coherent, and more justifiable, fault criteria in criminal law, torts, and other legal domains. (shrink)

Doug Husak suggests that sometimes an actor should be deemed reckless, and not merely negligent, with respect to the risks that she knowingly created but has forgotten at the moment of action. The validity of this conclusion, he points out, depends crucially on what it means to be aware of a risk. Husak’s neutral prompt and counterfactual actual belief criteria are problematic, however. More persuasive is his suggestion that we understand belief, in this moral and criminal law context, as (...) a concept whose meaning is determined by its function as a culpability standard. Husak concludes that inadvertent actors are often less culpable than knowing-but-later-forgetful actors; this is plausible, but there are also numerous counterexamples. Holly Smith focuses on negligence cases in which an agent’s failure to notice a risk stems, not from a prior culpable choice, but from an objectionable attitude or set of attitudes. She is right to emphasize that genuine moral culpability does not depend on conscious choice. However, Smith also asserts that decisions that flow from an actor’s objectionable attitudes are only rarely culpable, because they often do not arise from a reasonably full configuration of the actor’s motives. This last requirement is, I fear, an unrealistic and unnecessarily demanding criterion of culpability. Even when many of the actor’s evaluative attitudes are inactive in Smith’s sense, the actor might deserve blame for not bringing them to bear on his decision. Michael Moore and Heidi Hurd thoroughly explore, and find deficient, H.L.A. Hart’s unexercised capacity theory of negligence. They are correct that that theory requires a further judgment: an actor’s inadvertence is culpable only if he had the capacity to have adverted if X where X is the source of the actor’s moral desert. They overstate, however, in suggesting that the capacity issue falls out of the picture once we identify that underlying desert basis. The authors also worry that if desert is grounded on an underlying vice, we lack a reliable way of ranking the different vices that might explain the actor’s inadvertence; this is not a fatal objection, however, because negligence determinations are quite feasible even in the absence of clear rankings. Moore and Hurd conclude by identifying eight distinct categories in which criminal liability for negligence is justifiable. Negligence is indeed a surprisingly complex and pluralist concept. The three articles in this symposium brightly illuminate some of the most fundamental conceptual and normative issues in the debate over whether it is just to blame and punish the negligently inadvertent. (shrink)

This study examines the intertextual influence of the courtroom spoken genre with the written genre used by judge’s summing up and lawyers’ closing arguments in Ethiopian Criminal court trial. In doing so, it employs the relational and comparison-expository structuring models. The relational struc- turing is used to give emphasis to the manner in which evidence items bear on particular issues and shows how evidence items are related to each other and to major facts in issues of judge’s summing-up while (...) the comparison-expository structure is to intertextually link the spoken genres of the two opposing lawyers’ views with the Ethiopian criminal law written statutes. The findings of the study suggest that mixed rhetorical strategies, the judge’s relational summing up and the lawyers’ comparison-expository closing arguments, are more effective than a strict narrative strategy in addressing the final judgment of the argumenta- tion. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Diacritics 32.3-4 (2002) 33-59 [Access article in PDF] Amnesty or Impunity? A Preliminary Critique of the Report of the Truth and Reconciliation Commission of South Africa (TRC) Mahmood Mamdani The Truth and Reconciliation Commission of South Africa was the fruit of a political compromise whose terms both made possible the Commission and set the limits within which it would work. These limits, in turn, defined the space (...) available to the Commission to interpret its terms of reference and define its agenda. This paper takes the compromise legislation that set up the TRC as a historical given and focuses attention on the TRC's interpretation of its terms of reference.The TRC claimed to be different from its predecessors, whether in Latin America or Eastern Europe. It would practice neither impunity nor vengeance. It was therefore determined to avoid two pitfalls: on the one hand, reconciliation becoming an unprincipled embrace of political evil and, on the other hand, a pursuit of justice so relentless as to turn into revenge. To do so, the Commission was determined to address both "victims" and "perpetrators," not just one or the other.This double determination was first written into the interim constitution that paved the way for the legislation that set up the TRC. First, there would be no blanket amnesty. Amnesty would be conditional. It would not be a group amnesty. Every perpetrator would have to be identified individually, and would have to own up to his or her guilt—the truth—before receiving amnesty from legal prosecution. Second, any victim who is so acknowledged would give up the right to prosecute perpetrators in courts of law. Justice for the victim would thus not be criminal but restorative: acknowledgment would be followed by reparations. In sum, individual amnesty for the perpetrator, truth for the society, and acknowledgement and reparations for the victim—this was the pact built into the legislation that set up the TRC.Since the Act did not clearly define "victim," however, the definition of "perpetrator" was unclear as well. The task of defining "victim" and "perpetrator" was left to the Commission and was the single most important decision that determined the scope and depth of the Commission's work. Without a comprehensive acknowledgment of victims of apartheid, there would be only a limited identification of perpetrators and only a partial understanding of the legal regime that made possible the "crime against humanity." From this perspective, the paper identifies three key limitations in the Commission's Report.First, the TRC individualized the victims of apartheid. Though it acknowledged apartheid as a "crime against humanity" which targeted entire communities for ethnic and racial policing and cleansing, the Commission majority was reluctant to go beyond the formal acknowledgment. The Commission's analysis reduced apartheid from a relationship between the state and entire communities to one between the state and [End Page 33] individuals. Where entire communities were victims of gross violations of rights, the Commission acknowledged only individual victims. If the "crime against humanity" involved a targeting of entire communities for racial and ethnic cleansing and policing, individualizing the victim obliterated this particular—many would argue central—characteristic of apartheid. Limiting the definition of harm and remedy to individuals center-staged political activists as victims of apartheid, as indeed happened with the victim hearings. The consequence was to narrow the TRC perspective to a political reconciliation between state agents and political activists, individual members of a fractured political elite, rather than the "national unity and reconciliation" mandated by the legislation that set it up. To pursue its actual mandate, the TRC needed to broaden its perspective: to work for a social reconciliation between perpetrators and victims required that the relationship between the state and the entire South African people be addressed.Second, by focusing on individuals and obscuring the victimization of communities, the TRC was unable to highlight the bifurcated nature of apartheid as a form of power that governed natives differently from non-natives. If the apartheid state spoke the language of rights to... (shrink)

Criminal law exists in order to punish people for their culpable misconducts, whenever there is a culpable wrong one should criminalize and punish. A distinctive moral voice: the criminal wrong that we don’t find beyond is revealed and any normative ethical enquiry should point out, as a specific axiological and moral category related to such evil conducts. Why not suppose an unconscious genesis of it in the sensitive faculties, because there is a constitution of what man is, learned (...) through history? Eduard von Hartmann thinks that the normative role of self-control functions in different moral principles. This is valid also in criminal ethics. Thinking the process what begins to be morally relevant, as morally criminal is presented as “ruse of the conscious will”: pre ethically, by specific psychological drives, and metaphysically by character formation. (shrink)

International law scholars and lawyers can rely on The Global Community Yearbook to better understand the wealth of case law now emanating from international courts and tribunals. Two new volumes each year include in-depth articles addressing topics of jurisprudence, while shorter notes explore current legal issues and provide context for the year's cases, which comprise the majority of the set. The editor, Giuliana Ziccardi Capaldo, has assembled a comprehensive look at the present and future development of the international legal order. (...) Each major international court or tribunal has its own section, which includes an introductory article on the activity of that organization over the course of the year. The activities of the court and tribunals are presented in the form of "legal maxims," that distil the most important elements of the legal decisions of the past year and that provide researchers with quick access to the relevant point of law in each case. The cases themselves are indexed within each court's section, and then again in a general index for the entire set. Contributed to by leading legal experts, The Global Community Yearbook addresses the major developments in the courts and tribunals, providing a valuable resource for anyone wishing to better understand the functions, decisions and structure of the international legal courts. International Courts and Tribunals covered include: International Court of Justice International Tribunal for the Law of the Sea WTO Dispute Settlement System International Criminal Tribunal for Rwanda International Criminal Tribunal for the Former Yugoslavia Court of First Instance and Court of Justice of the European Communities European Court of Human Rights Inter-American Court of Human Rights Iran-U.S. Claims Tribunal International Centre for Settlement of Investment Disputes. (shrink)

Among the most noteworthy and impressive aspects of A.P. Simester’s monumental Fundamentals of Criminal Law is its pervasive pluralism. Many philosophers of criminal law, I have frequently complained, are excessively monistic on a number of basic questions about which pluralism is the more defensible option. I fear, however, that Simester’s views are sometimes too pluralistic. In particular, he assigns five separate functions to mens rea, and advances the novel claim that “mens rea is not, uniquely or even predominately, (...) about culpability.” He alleges that “the so-called ‘fault’ requirements plays an important role in mediating the scope of prohibitions.? My central objective is to challenge whether Simester is correct about whether mens rea has this alleged. (shrink)

The general mitigating and aggravating circumstances of criminal liability are elements attached to the crime that, when they occur, affect the punishment quantum. Cuban criminal legislation provides a catalog of such circumstances and some general conditions for their application. Such norms give judges broad discretion in assessing circumstances and adjusting punishment based on the intensity of those circumstances. In the interest of broad judicial discretion, the law does not establish specific ways for measuring circumstances’ intensity. This gives judges (...) more freedom and autonomy, but it also imposes on them more social responsibility and challenges them to manage the uncertainty and subjectivity inherent in this complex activity. This paper proposes a model to aid the linguistic assessment of circumstances’ intensity and to provide linguistic and numerical recommendations to determine an appropriate punishment interval. M-LAMAC determines the collective evaluation of circumstances of the same type, determines the prevalence of a type of circumstance by means of a compensation function, recommends the required modification in the input interval, and finally recommends a numerical interval adjusted to the judges’ initially expressed preferences. The model’s applicability is demonstrated by means of several experiments on a fictitious case of bank document forgery. (shrink)

In 2021, there was a significant amendment to the legislation on medical experimentation. In particular, Chapter 4 of the Law of December 5, 1996 on the Profession of Physician and Dentist (Journal of Laws 2023, item 1516) was amended, in which the prerequisites of legally relevant consent given by the participant in the experiment or by other entities that express a position on their behalf were specified. In addition, procedures related to the opinion of the research project by the so-called (...) bioethics committee were described. Its members were obliged to maintain confidentiality with regard to information obtained in connection with the fulfilled function. These norms became protected by criminal sanctions, set forth in the amended Article 58 of the law. New generic types of criminal acts were introduced, primarily aimed at protecting the participant's right to self-determination, the voluntariness of participation in the experiment, and the confidentiality of data submitted by the experimenters in their proposals to bioethics committees. These norms fill in the gaps that have existed so far in the criminal law protection of these values. The article systematically discusses the generic types of criminal acts that have been penalized in Article 58 (4) to (6) of the referenced law. Their object of protection, object side, subject, subject side, punishability and potential confluence with other regulations are presented. The historical-dogmatic justification for the introduction of these regulations is also shown. (shrink)

Commentators have contested the role of resulting harm in criminal law since the time of Plato. Unfortunately, they have neglected what may be not only the best discussion of the issue, but also the first - namely, Plato's one-paragraph discussion in the "Laws." Plato's discussion succeeds in reconciling two, seemingly irreconcilable viewpoints that till now have been in stalemate. Thus, Plato reconciles the view, that an offender's desert is solely a function of his subjective willingness to act in (...) disregard of the legitimate interests of others, with the view that criminal sentences can appropriately be made to depend upon how indignant, angry, and upset society is at an offender based upon the results of his culpable conduct. In doing so, Plato casts light on retributive theories of punishment by suggesting that an adjudicator can be committed to retribution and yet rightly believe that it is inappropriate to give an offender the full punishment he deserves. He also lays a basis for the view that causation, rather being predicates for the just punishment of offenders toward whom the public is intuitively angry for harm, is the consequence of the public's being intuitively angry at offenders for harm. (shrink)

My aim in this paper is to defend negligence as a legitimate basis for moral and criminal culpability. In so doing, I also hope to demonstrate how philosophical and jurisprudential perspectives on responsibility can mutually inform each other. While much of the paper focuses on criminal negligence, my aim is to show how attention to certain doctrines and concepts in criminal law can shed light on our understanding of moral culpability including culpability for negligence. It is often (...) taken to be a fundamental principle of criminal law that an act cannot be guilty unless it is accompanied by a culpable state of mind or mens rea. This has led to scepticism regarding negligence as a legitimate basis for desert-based criminal sanction because it is not clear that negligence picks out any mental state at all, much less a culpable one. In this paper I articulate and defend a unified account of moral and criminal culpability that rejects the standard view of mens rea that underlies negligence-skepticism. Specifically, I hold that the mens rea element of a crime does not function to inculpate, as is standardly held, but to partly determine the description under which an action counts as wrongful. While I agree that we should be especially cautious about criminalizing negligence, the relevant question, on my view, is not whether a given mens is sufficiently culpable but whether the mens-cum-actus is sufficiently wrongful to warrant the attention of criminal justice. (shrink)

The criminal law declines to punish merely for bad attitudes that are not properly manifested in action. One might try to explain this on practical grounds, but these attempts do not justify the law’s commitment to never punishing unmanifested mental states in worlds relevantly similar to ours. Instead, a principled explanation is needed. A more promising explanation thus is that one cannot be criminally culpable merely for unmanifested bad attitudes. However, the leading theory of criminal culpability has trouble (...) making good on this claim. This is the theory that an action is criminally culpable to the extent that it manifests insufficient regard for legally protected interests. The trouble is that this theory’s defenders have not adequately explained what it is for an action to manifest insufficient regard. In this paper, I aim to provide the required account of manifestation, thereby rendering the insufficient regard theory more defensible. This, in turn, allows the view to explain the broad range of doctrines that treat unmanifested mental states as irrelevant. The resulting theory of criminal culpability is both descriptively plausible and normatively attractive. Moreover, it highlights the continuity between criminal culpability and moral blameworthiness by showing how the former functions as a stripped-down analogue of the latter. (shrink)

International law scholars and lawyers can rely on The Global Community Yearbook to better understand the wealth of case law now emanating from international courts and tribunals. Two new volumes each year include in-depth articles addressing topics of jurisprudence, while shorter notes explore current legal issues and provide context for the year's cases, which comprise the majority of the set. The editor, Giuliana Ziccardi Capaldo, has assembled a comprehensive look at the present and future development of the international legal order. (...) Each major international court or tribunal has its own section, which includes an introductory article on the activity of that organization over the course of the year. The activities of the court and tribunals are presented in the form of "legal maxims," that distil the most important elements of the legal decisions of the past year and that provide researchers with quick access to the relevant point of law in each case. The cases themselves are indexed within each court's section, and then again in a general index for the entire set. Contributed to by leading legal experts, The Global Community Yearbook addresses the major developments in the courts and tribunals, providing a valuable resource for anyone wishing to better understand the functions, decisions and structure of the international legal courts. International Courts and Tribunals covered include: International Court of Justice International Tribunal for the Law of the Sea WTO Dispute Settlement System International Criminal Tribunal for Rwanda International Criminal Tribunal for the Former Yugoslavia Court of First Instance and Court of Justice of the European Communities European Court of Human Rights Inter-American Court of Human Rights Iran-U.S. Claims Tribunal International Centre for Settlement of Investment Disputes. (shrink)

This paper seeks to contribute to the field of transitional justice by adding new insights about the role that trials of victimizers can play within democratization processes. The main argument is that criminal proceedings affirming the value of equal respect and concern for both victims and abusers can contribute to the socialization of citizens’ politically relevant emotions. More precisely, using law constructively to engage public resentment and indignation can be successful to the extent that legality is not sacrificed. In (...) order to locate this argument within the rich literature on the pedagogical functions of transitional trials this paper enters a dialogue with three emblematic texts. Lawrence Douglas’s narrative jurisprudence approach, Judith Shklar’s critique of the limits of legalism, and Marc Osiel’s interest in ‘discursive solidarity’ represent starting points for a more complex conceptualization of the relationship between democracy, law and emotional education within transformational periods. (shrink)

In Regina v. Murray, (2000, Ont S.Ct.J.) the learned trial judge, Justice Gravely, errs in his interpretation and application of the law of mens rea in the offense of willfully attempting to obstruct justice under section 139(2) of the Criminal Code of Canada. In view of his findings of fact and law, including the determination that the accused knowingly and intentionally committed the actus reus of the offense and the absence of any suggestion that he lacked awareness of any (...) relevant facts, there is no question in law but that Kenneth Murray was liable to be, and actually should have been, convicted. Nonetheless, the trial judge concluded that Murray’s alleged belief, that his actions were required by his duty to his client, raised a reasonable doubt about his intention to obstruct justice and entitled him to be acquitted. -/- In his reasons for judgment, the trial judge analyzes mens rea as if there is a “color of right” defense to the offense of obstruction of justice. In law, however, no such defense exists to this offense. Consequently, even if Mr. Murray did “honestly believe” that he had a duty to his client not to disclose the existence of the video tapes, that belief could not provide him with an exculpatory defence. In Canada, pursuant to common law and section 19 of the Criminal Code, mistakes of law do not excuse accused persons from responsibility for criminal conduct in the absence of a statutory exception. No exception exists for the offense of obstruction of justice. Yet the Crown did not choose to appeal and thereby signaled its acceptance of the legal analysis adopted by the trial judge. By contrast, if the analysis proposed in this piece had been adopted, the Crown should have prevailed at trial and, if unsuccessful at trial, would have had a right of appeal on a question of law. -/- At least two tendencies converge as significant influences shaping the outcome in the Murray case. The central tendency, discussed in Part I of this article, is the trial judge’s treatment of the accused’s alleged mistake about his legal duty as if it were a mistake about a question of fact which therefore could give rise to a reasonable doubt about intention or culpable awareness. This approach to mistaken beliefs ignores the distinction between mistakes of law and mistakes of fact, and then characterizes all mistakes as mistakes of fact. Unfortunately, this is not uncommon in the case law. In recent years however, as explained below, the judiciary has rejected that approach in a number of leading cases and ruled that mistakes which are actually mistakes about the meaning, scope, or application of the law are subject to the general rule and do not provide an accused with an exculpatory defense. The relationship between mistake of law and mens rea in Canadian criminal law has also been the subject of critical scholarly comment in Canada in recent years. The Murray decision provides evidence that, despite clarification by the Supreme Court, in some lower courts the unrefined approach to mistaken belief continues to shape the legal analysis of criminal culpability, even when the mistaken belief is overtly a belief about the law. This will not change until the proper characterization of mistaken beliefs as legal or factual becomes a deliberate and common-place aspect of case analysis at the trial court level. -/- The other tendency, discussed in Part III of this article, is one that often appears as a companion to the first - the judicial tendency to perceive and invoke analytical legal ambiguity in favour of accuseds more readily in cases in which the impugned conduct involves the discretionary exercise of authority which, when used appropriately, is fully legitimate and essential to the normal functioning of the existing socio-legal order. Of course, courts are strongly influenced by the arguments put to them by counsel. And counsel, acting on behalf of client groups with particular group interests may, consciously or unconsciously, favour the development of those lines of analysis which are protective of that interest or associated institutional interests. One of the reasons for scrutinizing the Murray case is that it provides a concrete context for discussion of those issues in relation to an actual decision made by Crown prosecutors. The case provides an occasion to examine a specific example of the exercise of prosecutorial discretion, its implications for the administration of criminal justice, and its broader potential impact on the public interest. [See also errata in UNBLJ 2002 volume 52 at pp 309-310.]. (shrink)

Three years before his death, Michel Foucault delivered a series of lectures at the Catholic University of Louvain that until recently remained almost unknown. These lectures—which focus on the role of avowal, or confession, in the determination of truth and justice—provide the missing link between Foucault’s early work on madness, delinquency, and sexuality and his later explorations of subjectivity in Greek and Roman antiquity. Ranging broadly from Homer to the twentieth century, Foucault traces the early use of truth-telling in ancient (...) Greece and follows it through to practices of self-examination in monastic times. By the nineteenth century, the avowal of wrongdoing was no longer sufficient to satisfy the call for justice; there remained the question of who the “criminal” was and what formative factors contributed to his wrong-doing. The call for psychiatric expertise marked the birth of the discipline of psychiatry in the nineteenth and twentieth centuries as well as its widespread recognition as the foundation of criminology and modern criminal justice. Published here for the first time, the 1981 lectures have been superbly translated by Stephen W. Sawyer and expertly edited and extensively annotated by Fabienne Brion and Bernard E. Harcourt. They are accompanied by two contemporaneous interviews with Foucault in which he elaborates on a number of the key themes. An essential companion to _Discipline and Punish_, _Wrong-Doing, Truth-Telling_ will take its place as one of the most significant works of Foucault to appear in decades, and will be necessary reading for all those interested in his thought. (shrink)

The laws are not silent in war, but what should they say? What is the moral function of the law of armed conflict? Should the law protect civilians who do not fight but help those who do? Should the law protect soldiers who perform non-combat functions or who may be safely captured? How certain should a soldier be that an individual is a combatant rather than a civilian before using lethal force? What risks should soldiers take on themselves to (...) avoid harming civilians? When do inaccurate weapons become unlawfully indiscriminate? When does 'collateral damage' to civilians become unlawfully disproportionate? Should civilians lose their legal rights by serving, voluntarily or involuntarily, as human shields? Finally, when should killing civilians constitute a war crime? These are the questions that Law and Morality at War answers, contributing to a cutting-edge international debate. Drawing on the concepts and methods of contemporary moral and legal philosophy, the book develops a normative framework within which the laws of war and international criminal law can be evaluated, criticized, and reformed. While several philosophical works critically examine the moral status of civilians and combatants, this book fills a gap, offering both an account of the laws of war and war crimes, and proposing how the law could be improved from a moral point of view. (shrink)

This research explores the complex relationship between criminal courts, both national and international, truth and reconciliation commissions (TRC), and the Truth and Friendship Commission (TFC) in the context of resolving gross human rights violations in Indonesia. Examining the legal frameworks, the study delves into the dilemma surrounding the prosecution of perpetrators versus the forgiveness approach adopted by TRC/TFC for the sake of national unity. Drawing on Geoffrey Robertson's perspective, it questions the feasibility of pardoning heinous crimes and emphasizes (...) the role of courts in establishing democratic legitimacy. The research aims to clarify criteria for utilizing ad hoc Human Rights Courts and TRC, considering provisions from MPR Decree No. V/MPR/2000 and Law No. 26/2000 on Human Rights Courts. Understanding TRC/TFC as extra-judicial institutions, the study discerns their limitations, specifically addressing human rights violations predating Law No. 26/2000. The research utilizes legal analyses and explores the implications of different approaches on justice, societal trust, and democratic consolidation. Ultimately, it seeks to contribute insights into the effective resolution of past human rights abuses and their impact on Indonesia's legal and social fabric. (shrink)

Preventing future crime has become an increasingly dominant function of the criminal law of many liberal democracies. This “preventive turn” has led to a profound debate on the legal and ethical boundaries of the “preventive state.” However, the concept at the core of preventive justice—the dangerousness of the offender—has attracted relatively little attention in the current debate. This is remarkable, as the legal establishment of dangerousness permits intrusive preventive measures, such as preventive detention for an indeterminate period of (...) time. In the past, various concepts of dangerousness have been developed by criminal law scholars. We discuss these concepts in a chronological order to demonstrate how the meaning of dangerousness has evolved over time, and how it has been shaped by concurrent developments in forensic psychiatry and penology. Our description of the state of the art of legal scholarship on the concept of dangerousness also shows the lack of a fully developed theory of dangerousness, and therefore the necessity of further research. We identify five “aspects” of the concept of dangerousness on which scholars have widely diverging views. These five aspects are intended to guide further research on the concept of dangerousness in preventive criminal law. (shrink)

With the principle of tour de force, we refer to the use of the power of moral legality, the strength of statutes, and the fairness of judgments. A quantum force of moral legality and legal morality serves as an imperative force in the implementation of fair criminal justice, as well as in the prevention of future victims across the globe. Contrary to positivist ideas, the simple notion of morality contains within itself the very essence of international criminal norms. (...) If the source of morality did not exist in the structure of our criminal justice, we could no longer call it criminal justice and would instead have to call it criminal revenge. Beyond the moral essence of international criminal justice, we also challenge the hidden illegality and immorality of certain attitudes. This is done in order to prevent acts which violate human rights law and criminal justice provisions. The codes of international human rights law cannot properly function without the comprehensive nature of morality which elevates the moral virtue of international criminal justice and strengthens the tour de force. One may observe that the principle of the tour de force of the moral virtue within the system of international criminal justice loses its legal power when governments attempt to justify their unjust decisions. This is the main reason why the major potential value of the tour de force of the moral virtue of human rights law and international criminal justice is not as strong as it should be. In order to achieve a vision of the tour de force of moral virtue, we need to establish a devoted influential ethical vision of the truth beyond political tradition. An unparalleled philosophical piece of literature for libraries. (shrink)

The criminalization of femicide in Mexico has been introduced as a tool to address the violence, discrimination, and oppression against women. The criminalization strategy has a symbolic function: going beyond deterring the crime to be used as tool for education. In that sense, the criminalization of femicide emerges as an educational tool used to introduce new principles and societal values, highlighting the reality of discrimination and subordination against women, thereby transforming an individual conduct into a watershed issue worthy of (...) collective condemnation. At the same time, official data reveals that over the past two decades, the rate of murders of women involving firearms has increased by 375%. This highlights the necessity for a comprehensive criminalization strategy that acknowledges the widespread criminal use of firearms as a significant factor in gender-related killings of women. Therefore, to raise awareness (as the femicide laws intend), every policy emanating from the State, or its affiliate institutions must incorporate a gender perspective. This includes specific programs targeting armed gender-based violence, considering the entire weapons cycle, including gun production, their use, and transfer processes. Moreover, this gender-sensitive approach must also acknowledge that the possession of small arms is linked to violent masculinities and that women, beyond being victims, might also play roles as perpetrators of armed violence. The symbolic purpose of femicide laws should then become a platform for developing further appropriate effective policies and strategies to reduce gender-based violence, with special consideration of gendered armed violence. This article will analyze the possibility for extending the symbolic purpose of femicide law to produce a gendered small arms control strategy in Mexico. Considering the educational alternative that the femicide law provides, the following paper will evaluate the criteria needed to develop a comprehensive and intersectional program for gun control in Mexico. (shrink)