Criminal Law and Philosophy

https://link.springer.com/journal/11572

List of Papers (Total 126)

Examining the Ethics of Spying: A Practitioner’s View

This paper examines from the point of view of an intelligence practicioner the utility of the philosophical method that Professor Cecile Fabre has applied to intelligence ethics. Her emphasis on the duty that lies on governments to be sufficiently well informed about those who pose a real risk of serious violations of fundamental human rights is seen as a valuable addition to...

Idealizing Abolition

The United States system of policing is in drastic need of change. Some recent critics have encouraged that we avoid trying to repair the system—and abolish it altogether. In advancing this position, they often invoke ideas of “dreams,” “speculative imagination,” and “horizons” to guide efforts at fixing the problems of policing. In this essay, I caution against the overuse of...

Public Wrongs and Power Relations in Non-Democratic & Illiberal Polities

One of the influential contributions to criminalisation theories is Duff’s work on public wrongs, which offers a thin master principle of criminalisation, proposing that we have a reason to criminalise a type of conduct if it constitutes a public wrong; one that violates a polity’s civil order and forms part of that polity’s proper business. The nature of the civil order, the...

Justification and Motivation

According to the motivational thesis (MT), we are justified in performing an action if and only if we perform that action for the right reason(s). Proponents of MT disagree about how it is best interpreted—about what count as reasons of the right kind. In Fundamentals of Criminal Law, Andrew Simester criticises an interpretation offered by John Gardner. Here, I explore some of...

Criminal Responsibility Reconsidered

This essay review addresses the central responsibility thesis of David Brink's "Fair. Opportunity and Responsibility" and then considers two applications of the central. Thesis: legal insanity and diminished capacity.

When is Disbelief Epistemic Injustice? Criminal Procedure, Recovered Memories, and Deformations of the Epistemic Subject

People can be treated unjustly with respect to the level of credibility others accord to their testimony. This is the core idea of the philosophical idea of epistemic justice. It should be of utmost interest to criminal law which extensively deals with normative issues of evidence and testimony. It may reconstruct some of the long-standing criticisms of criminal law regarding...

Justifications and Rights-Displacements

In articles published ten years apart in 2011 and 2021, Gur-Arye argues that when considering an agent’s explanation for doing something that looks, prima facie, like a criminal offence, we should distinguish between a plea of justification, and an assertion that one acted within one’s power. The former explains an agent’s reasons for having committed a pro tanto offence (i.e...

Moore on Degrees of Responsibility

In his latest book Mechanical Choices, Michael Moore provides an explication and defence of the idea that responsibility comes in degrees. His account takes as its point of departure the view that free action and free will consist in the holding of certain counterfactuals. In this paper, I argue that Moore’s view faces several familiar counterexamples, all of which serve to...

The Legal Artifice of Liberty: On Beccaria’s Philosophy

Beccaria’s penal philosophy hinges on the doctrinal paradigm of liberty through law. Inconceivable in the absence of laws and unattainable in the presence of arbitrary powers, liberty is profiled as the legal situation of the person who may act, within the sphere of what is not forbidden and not bound, without suffering illicit interference from private individuals or organs of...

Standing and Pre-trial Misconduct: Hypocrisy, ‘Separation’, Inconsistent Blame, and Frustration

Existing justifications for exclusionary rules and stays of proceedings in response to pre-trial wrongdoing by police officers and prosecutors are often thought to be counter-productive or disproportionate in their consequences. This article begins to explore whether the concept of standing to blame can provide a fresh justification for such responses. It focuses on a vice...

Awareness and the Recklessness/Negligence Distinction

The distinction between the criminal fault elements of recklessness and negligence is one of Anglo-American criminal law’s key distinctions. It is a distinction with practical significance, as many serious crimes require at least recklessness and cannot be committed negligently. The distinction is standardly marked by awareness. Recklessness requires awareness that one’s conduct...

Reasonable Doubt, Robust Evidential Probability and the Unknown

Most legal evidence scholars agree that proof of guilt beyond a reasonable doubt requires the belief that the defendant probably committed the alleged acts. However, they also agree that this is not a sufficient condition, as this belief may be unreasonable. I focus on two popular proposals for additional conditions: (i) that the degree of belief should be robust and (ii) that it...

The Concept of the Police

The organization of the modern police is a contingent social choice about how to engage in the process of governance when regulating public order on the street. The police are the agency authorized to act upon the state’s duty to govern in response to public emergencies. The duty to govern exists when there is some urgent social need that could be resolved by acting, and some...

Should Detection Avoidance Be Criminalized?

Human nature being what it is, individuals engaging in unlawful activity will often seek to avoid having their misconduct detected by law enforcement. This article provides the first legal analysis of what are termed detection avoidance measures, and evaluates whether, and how, they should be subject to criminalization.

Craving and Control

Pre-reflectively, many addicts seem either not responsible, or less responsible, for their addictive conduct, at least if they lack responsibility for their addiction. Moore believes roughly the following. Addicts lack responsibility, when they do, because addicts are unable to control their conduct. They are unable when certain modal conditions are satisfied. Moore offers...

Gopal Sreenivasan, Emotion and Virtue: Five Questions About Courage

An important virtue of Emotion and Virtue is its careful and sophisticated discussion of the central yet ill-understood virtue of courage. However, Sreenivasan’s treatment of courage raises as many questions as it answers; several of these can be brought into sharper focus by comparison with the argument of Plato and Aristotle on the topic.

What is Hate Speech? The Case for a Corpus Approach

Contemporary public discourse is saturated with speech that vilifies and incites hatred or violence against vulnerable groups. The term “hate speech” has emerged in legal circles and in ordinary language to refer to these communicative acts. But legal theorists and philosophers disagree over how to define this term. This paper makes the case for, and subsequently develops, the...

Mechanical Choices: A Compatibilist Libertarian Response

Michael S. Moore defends the ideas of free will and responsibility, especially in relation to criminal law, against several challenges from neuroscience. I agree with Moore that morality and the law presuppose a commonsense understanding of humans as rational agents, who make choices and act for reasons, and that to defend moral and legal responsibility, we must show that this...

Too Objective for Culpability?

To help explain in a principled way why criminal law doctrine tends to abstract away from motives and other individualized circumstances, I have defended an insufficient regard theory of criminal culpability that is more objective in certain respects than other views in the same camp. This has led Alec Walen to object that my view is too objective to be an account of culpability...

On the Necessity Defense in a Democratic Welfare State: Leaving Pandora’s Box Ajar

The necessity defense is barely accepted in contemporary Western case law. The courts, relying on the opinion held by the majority of legal scholars, have reduced its margin of application to practically zero, since in the framework of contemporary welfare states, there is almost always a “legal alternative.” The needy person who acts on their own behalf, regardless of whether...