Criminal Law and Philosophy

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

List of Papers (Total 42)

Consent, Rights, and Reasons for Action

The normative power of consent plays a central role in enabling individuals to permissibly interact with one another. However, in the philosophical literature, the relationship between consent and permissible action is not always well understood. In this article I outline an account of the normative effect of valid consent, in order to clarify this relationship. I first argue...

Shoemaker on Sentiments and Quality of Will

In this comment, I raise a number of concerns about David Shoemaker’s adoption of the quality of will approach in his recent book, Responsibility from the Margins. I am not sure that the quality of will approach is given an adequate grounding that defends it against alternative models of moral responsibility; and it is unclear what the argument is for Shoemaker’s tripartite...

On Wrongs and Crimes: Does Consent Require Only an Attempt to Communicate?

In Wrongs and Crimes, Victor Tadros clarifies the debate about whether consent needs to be communicated by separating the question of whether consent requires expressive behaviour from the question of whether it requires “uptake” in the form of comprehension by the consent-receiver. Once this distinction is drawn, Tadros argues both that consent does not require uptake and that...

Provocateurs and Their Rights to Self-Defence

A provocateur does not pose a threat of harm. Hence, a forceful response to provocation is generally considered wrongful. And yet, a provocateur is often denied recourse to a self-defence justification if she defends herself against such a violent response. In recent work, Kimberly Ferzan argues that a provocateur forfeits defensive rights but this forfeiture cannot be explained...

Can Corporations Experience Duress? An Examination of Emotion-Based Excuses and Group Agents

This article considers the question of whether corporate entities can benefit from the criminal-law defence of duress. The excuse of duress is accorded in recognition of the defendant’s extreme fear of a threatened consequence, and it is unclear whether corporate entities—as distinct from their members—can experience fear. Many proponents of corporate rationality deny that...

Crime Victims and the Right to Punishment

In this paper, I consider the question of whether crime victims can be said to have a moral right to see their victimizers punished (a “right to punishment”) that could explain why they often feel wronged or cheated when the state fails to punish offenders (or even to make such conduct punishable). In the first part, I explain what I mean by a “right to punishment” and what it is...

Right, Crime, and Court: Toward a Unifying Political Conception of International Law

It is widely acknowledged that human rights law (hereafter, HRL) and international criminal law (hereafter, ICL) share core normative features. Yet, the literature has not yet reconstructed this underlying basis in a systematic way. In this contribution, I lay down the basis of such an account. I first identify a similar tension between a “moral” and a “political” approach to the...

Criminalization and the Collateral Consequences of Conviction

Convicted offenders face a host of so-called “collateral” consequences: formal measures such as legal restrictions on voting, employment, housing, or public assistance, as well as informal consequences such as stigma, family tensions, and financial insecurity. These consequences extend well beyond an offender’s criminal sentence itself and are frequently more burdensome than the...

Corrective Justice as A Principle of Criminal Law: A Prolegomenon

This article argues that corrective justice is an adequate principle of criminalization. On my interpretation, corrective justice holds that, in order for an action to count as a crime, there needs to be a plausible normative story about an offender having violated the interests of a victim in a way that disturbs their relationship as equal persons and a subsequent story about...

Review of Findlay Stark, Culpable Carelessness: Recklessness and Negligence in the Criminal Law

This book review sketches the main arguments of Findlay Stark’s book, and then goes on to develop an objection to Stark’s account of one of the core notions in the book—namely, awareness of risk.

Laws that are Made to be Broken

Criminal laws are created to achieve various ends. These include (1) reducing the incidence of wrongdoing, and (2) holding wrongdoers responsible for their wrongs. Some criminal laws are created to further the first of these ends by means of compliance. The second end is to be furthered only if, regrettably, some fail to comply. These criminal laws are made to be followed. Other...

Do Theories of Punishment Necessarily Deliver a Binary System of Verdicts? An Exploratory Essay

Scholars writing on theories of punishment generally try to answer two main questions: what human behaviour should be punished and why? Only cursorily do they concern themselves with the question as to how confident in the occurrence of criminal behaviour we must be prior to punishing—i.e., the question of the criminal standard of proof. Theories of punishment are ultimately...

The Concept of Entrapment

Our question is this: What makes an act one of entrapment? We make a standard distinction between legal entrapment, which is carried out by parties acting in their capacities as (or as deputies of) law-enforcement agents, and civil entrapment, which is not. We aim to provide a definition of entrapment that covers both and which, for reasons we explain, does not settle questions...

Incitement: A Study in Language Crime

A person incurs inchoate criminal liability when he incites another person or other persons to commit a crime. The most salient characteristic of incitement, in comparison with the other forms of inchoate crime, is the existence of a communication that is made with a view to persuading the addressee(s) to commit an offence. This article explores the question of why incitement...

Killing in War: Unasked Questions-Ill-Founded Legitimisation

Killing in war as a matter of course may be inferred from the fact that, as stated by Thomas Hobbes, “all laws are silent in the time of war”. Although this traditional law-suspending power of war has been restricted to a certain degree by modern humanitarian international law, it is still commonly assumed that killing in war, unless and as long as not explicitly forbidden, is...

The Deadly Serious Causes of Legitimate Rebellion: Between the Wrongs of Terrorism and the Crimes of War

This article challenges the tendency exhibited in arguments by Michael Ignatieff, Jeremy Waldron, and others to treat the Law of Armed Conflict (LOAC) as the only valid moral frame of reference for guiding (and judging) armed rebels with just cause. To succeed, normative language and principles must reflect not only the wrongs of ‘terrorism’ and war crimes, but also the rights of...

Self-Control in Responsibility Enhancement and Criminal Rehabilitation

Ethicists have for the past 20 years debated the possibility of using neurointerventions to improve intelligence and even moral capacities, and thereby create a safer society. Contributing to a recent debate concerning neurointerventions in criminal rehabilitation, Nicole Vincent and Elizabeth Shaw have separately discussed the possibility of responsibility enhancement. In their...

Retributivism and Public Opinion: On the Context Sensitivity of Desert

Retributivism may seem wholly uninterested in the fit between penal policy and public opinion, but on one rendition of the theory, here called ‘popular retributivism,’ deserved punishments are constituted by the penal conventions of the community. This paper makes two claims against this view. First, the intuitive appeal of popular retributivism is undermined once we distinguish...

Ignorance Lost: A Reply to Yaffe on the Culpability of Willful Ignorance

In a recent paper in this journal, Gideon Yaffe provides an expected utility model of culpability in order to explain why willfully ignorant misconduct sometimes is just as culpable as knowing misconduct. Although promising, I argue here that challenges remain for Yaffe’s view. First, I argue that Yaffe’s proof of the equal culpability of willful ignorance and knowledge is not...

The Wrong of Mass Punishment

The increase in incarceration of offenders in the United States over the last 40 years has created a system of mass incarceration or mass punishment. While consequentialist theories of punishment may generate considerable doubts about the value of this system, it seems that retributive theories of punishment lack the resources to criticize mass punishment. Because of their focus...

Expediency, Legitimacy, and the Rule of Law: A Systems Perspective on Civil/Criminal Procedural Hybrids

In recent years an increasing quantity of UK legislation has introduced blended or ‘hybridised’ procedures that blur the previously clear demarcation between civil and criminal legal processes, typically on the grounds of normatively-motivated political expediency. This paper provides a critical perspective on instances of procedural hybridisation in order to illustrate that...