As a practising lawyer and judge, it is the insights gained from Stephen's own experience that give an added practical dimension to this work. As well as his accounts of the history of the branches of the law, Stephen gives several fascinating analyses of famous trials, and explores the relation of madness to crime and the relation of law to ethics, physiology, and mental philosophy. His discussion also includes the subjects of criminal responsibility, offences against the state, the (...) class='Hi'>criminal jurisdiction of the Privy Council, libel, Indian criminal law and offences against religion. (shrink)

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

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

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

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

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

After briefly sketching an historical account of criminal law that emphasizes its longstanding reach into social, commercial and personal life outside the core areas of criminal offenses, this paper explores why criminal law theory has never succeeded in limiting the content of criminal codes to offenses that fit the criteria of dominant theories, particularly versions of the harm principle. Early American writers on criminal law endorsed no such limiting principles to criminal law, and early (...) American criminal law consequently was substantively broad. But even with the rise of theories in the mid-nineteenth century that sought to limit criminal law’s reach, codified offenses continued to widely and deeply regulate social life and exceed the limits of those normative arguments. This essay suggests that this practical failure of criminal law theory occurred because it was never adopted by an institutional actor that could limit offense definitions in accord with normative commitments. Legislatures are institutionally unsuited to having their policy actions limited by principled arguments, and courts passed on the opportunity to incorporate a limiting principle for criminal law once they began, in the Lochner era, actively regulating legislative decisions through Constitutional law. The one avenue through which criminal law theory has had some success in affecting criminal codes is through the influence of specialized bodies that influence legislation, especially the American Law Institute advocacy of the Model Penal Code. But the institutional structure of American criminal law policymaking permits an unusually small role for such specialized bodies, and without such an institutional mechanism, criminal law theory is likely to continue to have little effect on actual criminal codes. (shrink)

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

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

25 leading contemporary theorists of criminal law tackle a range of foundational issues about the proper aims and structure of the criminal law in a liberal democracy. The challenges facing criminal law are many. There are crises of over-criminalization and over-imprisonment; penal policy has become so politicized that it is difficult to find any clear consensus on what aims the criminal law can properly serve; governments seeking to protect their citizens in the face of a range (...) of perceived threats have pushed the outer limits of criminal law and blurred its boundaries. To think clearly about the future of criminal law, and its role in a liberal society, foundational questions about its proper scope, structure, and operations must be re-examined. What kinds of conduct should be criminalized? What are the principles of criminal responsibility? How should offences and defences be defined? The criminal process and the criminal trial need to be studied closely, and the purposes and modes of punishment should be scrutinized. Such a re-examination must draw on the resources of various disciplines-notably law, political and moral philosophy, criminology and history; it must examine both the inner logic of criminal law and its place in a larger legal and political structure; it must attend to the growing field of international criminal law, it must consider how the criminal law can respond to the challenges of a changing world.Topics covered in this volume include the question of criminalization and the proper scope of the criminal law; the grounds of criminal responsibility; the ways in which offences and defences should be defined; the criminal process and its values; criminal punishment; the relationship between international criminal law and domestic criminal law. Together, the essays provide a picture of the exciting state of criminal law theory today, and the basis for further research and debate in the coming years. (shrink)

Increasingly, international governmental networks and organisations make it necessary to master the legal principles of other jurisdictions. Since the advent of international criminal tribunals this need has fully reached criminal law. A large part of their work is based on comparative research. The legal systems which contribute most to this systemic discussion are common law and civil law, sometimes called continental law. So far this dialogue appears to have been dominated by the former. While there are many reasons (...) for this, one stands out very clearly: Language. English has become the lingua franca of international legal research. The present book addresses this issue. Thomas Vormbaum is one of the foremost German legal historians and the book's original has become a cornerstone of research into the history of German criminal law beyond doctrinal expositions; it allows a look at the system's genesis, its ideological, political and cultural roots. In the field of comparative research, it is of the utmost importance to have an understanding of the law's provenance, in other words its historical DNA. (shrink)

In this short essay, I suggest a few specific ways in which criminal law exceptionalism has shaped the theory and practice of criminal law. First, criminal law exceptionalism isolates criminal theory from legal theory more generally, with the result that criminal theorists often miss insights from other legal fields. Relatedly but more broadly, criminal law exceptionalism can make sociology, psychology, history, and political theory invisible or seemingly irrelevant to criminal theory. Together, these two (...) forms of scholarly insularity put criminal theory (or criminal theorists) into a silo in which the political, social, and historical contexts of actual criminal legal practices disappear from view. Ultimately, the siloed thinking of criminal law exceptionalism makes it difficult or impossible to contemplate a world without criminal law. Thus criminal law exceptionalism does its ideological work: it produces and reinforces the belief that criminal law is indispensable, a belief that in turn motivates policy choices and informs legal practices. (shrink)

The paper deals with the notion of guilt according to Heidegger’s philosophy and its repercussions for the understanding of guilt according to criminal law doctrine and theory. Heidegger’s notion on guilt is tantamount to Dasein’s incapacity to exhaust all its existential possibilities, whereas legal guilt has to do only with man’s legal indebtedness, which is an aspect of inauthenticity, a deficient mode of ontological responsibility. This does not mean, though, sheer amoralism or apologetics to violence. In late Heidegger one (...) may discern traces of an ontological ethics, which refers to Dasein’s attunement to Being and especially to the sparing and healing of the Fourfold as these are coming to presence through poetic dwelling; through, that is, an authentic contact with the Uncanny, meaning a radical exposure to Being’s enigmatic hiddenness, the endurance in front of the abyss of Nothingness. In this framework there remains no space for assuming any moral-juridical responsibility, because Dasein is predestined to err constantly due to the ruptures and turnings of Being’s history. Legal blameworthiness is thus obsolete because, injustice being according to Heidegger the dis-jointure of Being’s order, there is ontologically no imputable ‘legal’ crime; there is only Dasein’s eventful projecting-opening within errancy. Whether though this notion of ‘Being’ is a new ‘arche’ to be superseded emerges then as the crucial question. To regain any non-metaphysical notion of guilt is after Heidegger only possible through a theoretical move which cannot ignore his legacy but also has to go beyond the Master. (shrink)

According to a common view, criminal law should be structured in a way that allocates the conditions of criminal liability to different types of legal rules, given the content of the condition and the nature of the rule. This view classifies some conditions as elements of offenses and others as (part of) justificatory defenses or of excusatory defenses. While this view is attractive, I argue that it should be rejected, since it is incompatible with two plausible propositions about (...) legal rules. The first is that foundational reasons are not concerned with the structure of the law as such. The second is that legal rules should be constructed in a way that reflects (the balance of) all the applicable reasons and not just some of them. (shrink)

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

Taking as its starting point Miri Gur-Arye’s critical discussion of a legal duty to report crime, this paper sketches an idealising conception of a democratic republic whose citizens could be expected to recognise a civic responsibility to report crime, in order to assist the enterprise of a criminal law that is their common law. After explaining why they should recognise such a responsibility, what its scope should be, and how it should be exercised, and noting that that civic responsibility (...) must include a responsibility to report one’s own crimes; it discusses whether that civic responsibility could ground at least a limited legal duty to report certain types of crime. It then turns to the question of whether a civic responsibility to assist the criminal law’s enterprise of bringing wrongdoers to account could include a responsibility to arrest suspected or known offenders if the police cannot or will not do so—a responsibility to make a citizen’s arrest, and the legal power to discharge that responsibility: how far should citizens feel entitled, or duty-bound, thus to ‘take the law into their own hands’? (shrink)

Respondeat superior is a legal doctrine conferring liability from one party onto another because the latter stands in some relationship of authority over the former. Though originally a doctrine of tort law, for the past century it has been used within the criminal law, especially to the end of securing criminal liability for corporations. Here, I argue that on at least one prominent conception of criminal responsibility, we are not justified in using this doctrine in this way. (...) Firms are not answerable for the crimes committed by their employees, because firms cannot answer as to why the crime was committed; they lack the authority to offer the employee’s reasons for action. Though this rules out respondeat superior as a general principle, I show contexts in which vicarious liability is still appropriate in the criminal law, and I respond to a number of other concerns raised by this picture. (shrink)

The paper defends an interactive theory of the distinctiveness of criminal law. It argues that criminal law’s distinctive behavior can be connected to the interaction between five traits: it is an institutional practice administered by a large and special bureaucracy, playing a substantial role in authorizing the use of coercive police force, leading to a harsh sanctioning regime linked, at least in part, with core wrongs and notions of personal responsibility. Although none of these features is exclusive to (...) criminal law, their interaction leads to modes of behavior that set it apart from other institutions. The paper argues that putting attention on the effects of this interaction provides us with powerful tools to both understand and asses the value and problems of criminal law. (shrink)

Today, there are several problems in the field of criminal law caused both by the emergence of new types of legal relations and by the imperfection of legislation. Due to the emergence of new challenges in the field of criminal law, many of them require theoretical understanding. Some of these challenges, generated in the light of the armed aggression of the Russian Federation against Ukraine, revealed several reasons for discussion in the Ukrainian and international legal community. The purpose (...) of the study involves consideration of certain aspects of modern challenges in the field of criminal-legal relations, which arose against the background of the military aggression of the Russian Federation in Ukraine. The first part of the study is devoted to the question of the qualification of war crimes committed by the Russian Federation in Ukraine as acts of genocide. The second part of the work is devoted to the issue of using existing international legal mechanisms to hold the Russian Federation accountable for war crimes. There are convincing reasons to say that the actions of the Russian Federation during the war in Ukraine have signs of the crime of genocide. Even though Ukraine is not a party to the Rome Statute, the Ukrainian government can use another tool to bring the subjects of war crimes to justice, by creating a certain mixed investigative mechanism or a criminal tribunal that could deal directly with the crime of aggression. (shrink)

Much contemporary discussion of mercy has focused on what I call ‘beneficent mercy’: compassionately sparing a person from harsh treatment that she deserves. Drawing on Seneca’s discussion of mercy, I articulate a different concept of mercy which I call ‘critical mercy’: treating a person justly when unjust social rules call for harsher treatment. Whereas beneficent mercy is grounded in recognition of imperfection in human individuals, critical mercy is grounded in recognition of imperfection in human institutions. I argue that political communities (...) have reason to authorize judges to grant critical mercy in criminal law. I contend with the objection that critical mercy appears to violate the ideal of the rule of law. I argue that where certain constraints are met, rule of law values in fact provide positive reason to authorize judges to grant critical mercy in criminal law. (shrink)

In order to be properly applied, criminal law must determine what conduct warrants punitive action. Figuring out exactly how one must act to be criminally liable is a difficulty that faces any legal system. In many jurisdictions criminal recklessness is regarded as an important notion for liability. However, recklessness is difficult to define, and attempts at this exercise have been a problem in legal philosophy since the mid-twentieth century, and persist today. This thesis discusses accounts of recklessness with (...) the aim of defining it in a way that overcomes several problems which have arisen in recent legal history. It is widely accepted, as well as prima facie intuitive, that people can be culpable for acts committed recklessly. Despite this, whether or not a state of mind is reckless is difficult to define, let alone define in a way that is not only conceptually sound, but also pragmatically apt. Recklessness occurs when an agent engages in some risky activity, but factors like the agent’s attitude and whether the risk is foreseen have been cited as relevant when ascertaining their recklessness. I discuss some difficulties in legally framing recklessness, before criticising some definitional manoeuvres made by judges and scholars in the past. With some problems in previous accounts noted, I consider the foundations of culpability in general. I suggest that two accounts of culpability – the agency theory and the choice theory – are both plausible, and each correlates to a prominent contemporary position on recklessness. After serious consideration of both positions, I conclude that the position advocated by Antony Duff, which I see as in keeping with the agency theory of culpability, is both more generally useful for criminal law and much more coherent with our everyday practices of blaming and punishing. (shrink)

The purpose of the paper is to analyse the translation into English and Korean of the old Polish criminal law terminology used by Adam Mickiewicz in his renown poem entitled “Master Thaddeus, or the Last Foray in Lithuania: A Nobility’s Tale of the Years 1811–1812, in Twelve Books of Verse” Mickiewicz (Pan Tadeusz czyli ostatni zjazd na Litwie. Historia szlachecka z roku 1811 i 1812 we dwunastu księgach wierszem). The research methods used encompass the analysis of parallel texts of (...) the poem. The authors first selected the fragments of the poem containing criminal law terminology. Next analysed two translations into English (Biggs in Master Thaddeus, or the last Forey in Lithuania—by Adam Mickiewicz, an Historical epic poem in XII books, translated from the original by Biggs, with a Preface by W.R. Morfill, M.A. and Notes, by the translator and Edmond Naganowski, Trübner et Comp, London, 1885 and MacKenzie in Adam Mickiewicz. Pan Tadeusz or the Last Foray in Lithuania. A Tale of the Gentry in the Years 1811 and 1812 translated into English verse with Introduction by Kenneth R. Mackenzie, Polska Fundacja Kulturalna, Londyn, 1990) and one into Korean Cheong et al. (『판 타데우시』 [Pan Tadeusz] Hankuk University of Foreign Studies, Seoul, 2005). The findings reveal that the terminology under scrutiny in the majority of cases must be considered obsolete and legal system-bound. Mickiewicz (1834) referred to the laws binding Poles under the Third Lithuanian Statute (Wilno, 1774). Therefore, the translators had to face the challenge of deciphering the appropriate meanings and finding equivalents sufficiently conveying them. (shrink)

This essay discusses criminal law theories in late Imperial Russia. It argues that, although the political climate of Reform and Counter Reform effectively undermined attempts to implement new legislation premised on the idea of the 'rights-enabled person', paradoxically, it fostered the growth of juridical scholarship. Russian criminal law theorists engaged critically with Western juridical science, which, beginning in the 1870s, witnessed a shift away from absolutist theories inspired by the classics of philosophical idealism towards various strains of positivism (...) arguing for the restoration of the person as a concrete, physiological being. However, while Russian scholars were drawn to these new trends of criminal anthropology and the sociology of crime, they were also obliged to take stock of an indigenous legal culture that scarcely differentiated between pravo and zakon, together with a long tradition of customary practices that equated crime and punishment with sin and redemption. (shrink)

Multiple viewpoints have been expressed regarding the principle nulla poena sine lege. Some scholars advocate the inviolability of this maxim because it safeguards personal freedom—an opportunity to do everything not prohibited by law. However, its critics assert that rigid adherence to the principle nulla poena sine lege may do more harm than good. They argue that the maxim, while prohibiting judges from punishing non-criminal acts, makes it impossible for courts to deter them in a timely manner, which, in certain (...) cases, may have a detrimental effect on society. To determine the correct approach to nulla poena sine lege, the paper considers its history in continental criminal law and then analyses the principle theoretically. The examination reveals that two contradictory interests—the need to safeguard personal freedom and the need to combat lawful, yet socially harmful, acts through judicial punishment—cannot be completely ignored in practice. Therefore, the findings suggest a balancing between these interests and propose a way to achieve this compromise. (shrink)

Magna Carta Libertatum or the Great Charter of the Liberties is a historical document of great significance for the constitutional history and human rights and liberties development. Although at its initial version it addressed a limited number of liberties and principles, it represented a solid foundation for the evolution of the principles of the rule of law, right to justice, right to a fair trial, just and reasonable sentencing, limitation of powers, etc. Namely, article 20 of the Charter states: A (...) freeman shall not be amerced for a slight offense, except in accordance with the degree of the offense; and for a grave offense he shall be amerced in accordance with the gravity of the offense, yet saving always his “contenement”; and a merchant in the same way, saving his “merchandise”; and a villein shall be amerced in the same way, saving his “wainage” if they have fallen into our mercy: and none of the aforesaid amercements shall be imposed except by the oath of honest men of the neighborhood. An analysis of this article undoubtedly leads us to the basic principles of the contemporary systems of fine, namely the daily-fine system introduced in the Macedonian Criminal Code in 2004 according to which the fine will be calculated and pronounced according to the gravity of the offence and the financial state and condition of the perpetrator. As one can notice, the gravity of the offence and the saving of the perpetrators “contenement” from the abovementioned article of the Great Charter refer to the aforesaid principles. In this article, a comparison will be made on the meaning of the term “amercement” and its similarities and differences with the modern financial penalties and measures in the criminal law from comparative perspective, to find which one corresponds to the latter: fine, assets forfeiture or compensation of damages made with the criminal offence. (shrink)

In the first of these two lectures Professor Hart is concerned with certain controversies and changes of attitude towards the question of moral guilt—mens rea,’ the guilty mind’—in criminal proceedings according to English law. There is, on the one hand and at one extreme, the attitude of the McNaughten Rules which excludes guilt only in the case of a ‘defect of reason’; at the other extreme there is the modern position, represented by Lady Wootton according to which the conception (...) of metis rea should be dropped altogether—criminal proceedings are concerned with ‘social hygiene’ and have nothing to do with responsibility: the question of responsibility comes up only after a verdict has been reached in estimating what steps are likely to have the best consequences for the ‘criminal’ and for society. Between these extremes Professor Hart takes a kind of middle course, what he calls ‘a moderate form of the new doctrine’: ‘Under this scheme mens rea would continue to be a necessary condition of liability to be investigated and settled before conviction except so far as it relates to mental abnormality. The innovation would be that the accused person would not be able to adduce any form of mental abnormality as a bar to conviction. The question of his mental abnormality would under this scheme be investigated only after conviction and would primarily be concerned with his present rather than his past mental state’. He admits that there are some practical difficulties against this view, but he does not consider the theoretical difficulty that the theory does away with the principle that criminal conviction must be based on guilt and responsibility. (shrink)

This article starts from the observation that in classical Athens the discovery of democracy as a normative model of politics has been from the beginning not only a political and a legal but at the same time a philosophical enterprise. Reflections on the concept of criminal law and on the meaning of punishment can greatly benefit from reflections on Athenian democracy as a germ for our contemporary debate on criminal justice in a democracy. Three main characteristics of the (...) Athenian model will be analysed: the self-instituting capacity of a democracy based on participatory and reflective citizenship, political power as the capacity of citizens for co-operating and co-acting with others, and the crime of hubris as one of the key issues in Athenian criminal law. These analyses will lead to the conclusion that one of the key issues of a democratic legal order lies in its capacity of recognizing the fragility of the human condition and of developing workable and effective standards of justice in that context. A relational conception of criminal law and punishment, based on proportionality, reflexivity, mutual respect and responsibility fits best with a democracy under the rule of law. (shrink)

It is generally agreed that the laws of a society are primarily concerned with the protection of life and property and with the preservation of those institutions which serve the common good and, indirectly, the members of the community. It is also generally admitted that the law must include a certain limited amount of ‘paternalistic’ legislation by which the young and incapacitated are protected, sometimes against themselves.

In lieu of an abstract, here is a brief excerpt of the content:A New Look at Animal-to-Human Organ TransplantationCharles R. McCarthy (bio)The acute shortage of organs available for transplantation into human beings combined with a new scientific understanding of the immune systems of both humans and animals make it probable that animal-to-human solid organ transplants (xenografts) may soon be attempted at a frequency rate unknown in the past. 1 Optimism about successful animal-to-human organ transplantation is greater than at any previous (...) time. The creation of a reliable supply of animal organs appears to be technically feasible. At least five major transplant centers in the United States are currently considering plans to pursue xenotransplantation. Although, at the time of this writing, no federal guidelines prohibit animal-to-human organ transplantation, the institutions considering such programs are awaiting deliberations on the subject by the Institute of Medicine (IOM), the Food and Drug Administration (FDA), and the Department of Health and Human Services (DHHS).The demand for organs suitable for transplantation into human beings greatly exceeds the supply. According to the United Network for Organ Sharing (UNOS 1996a), approximately 44,000 patients in the United states awaited organ transplantation at the end of 1995. In 1994, more than 3,000 patients died while on the transplant waiting list, and the demand for transplantable organs increases annually (UNOS 1996b). The figures do not include the hundreds or perhaps thousands of patients who could profit from a transplant, but who do not meet the requirements of the UNOS waiting list. Even if efforts to persuade persons to donate organs are redoubled, and even if the consent to donate organs should become a legal presumption, there is little prospect of developing a sufficient supply of transplantable human organs to meet the growing demand.As technical and biological barriers to successful animal-to-human xenografts are lowered, the prospect of raising dedicated colonies of animals, genetically altered to reduce the chances that human hosts will reject organs derived from them, is being seriously discussed. 2 Such colonies do not exist at the present time. [End Page 183] However, if new techniques for animal-to-human transplantation prove successful, it is likely that animal colonies will be established to provide a ready and predictable supply of organs for transplantation to humans. Some believe that commercial investment in colonies of purpose-bred animals to serve as a source of transplantable organs is close at hand (Leventhal 1994).New drugs and new combinations of existing drugs have improved the chances of successful medical outcomes for patients who receive solid organ transplants. It is now recognized that serial application of immunosuppressive drugs can reduce the likelihood of both short- and long-term organ rejection (Makowka 1994). Improved understanding of both human and animal immune systems, insights into histocompatibility, new agents to control graft-versus-host disease, animal breeding programs for the production of transgenic animals, and improved surgical techniques have opened, as never before, the possibility of successful transfer of organs from animals to humans. Some rate the chances of good patient outcomes (usually measured in terms of time of patient survival) as high, others make more conservative predictions, but virtually all experts believe that the chances for successful human patient outcomes resulting from xenotransplantation are improved. Because many patients face immanent death unless their organs can be replaced, there can be little doubt that many humans will readily consent to xenotransplantation.History Suggests CautionDespite the advances in immunosuppression, the frequency of failure in past animal-to-human xenograft attempts should temper the optimism of the transplant community. To date, all efforts to prolong human life by implanting solid organs from animals into human recipients have failed. The first attempts at animal-to-human xenotransplantation early in the twentieth century resulted in the early death of all recipients (Neuhof 1923). More sophisticated efforts at xenotransplantation occurred in the late 1960s and early 1970s, a period when anti-rejection drugs began to make allografts more feasible. Although one human recipient of a xenograft survived for nine months (with poor quality of life), most patients died within a matter of minutes, hours, or a few days following the transplantation of organs from chimpanzees or baboons (Starzl... (shrink)

This paper investigates the phenomenon of judicial law-making in the practice of the highest courts dealing with criminal matters in Germany and Poland on the basis of 200 of their decisions. While German jurisprudence principally acknowledges the right of the judiciary to create new law, the Polish legal theory generally rejects this notion. Still, research indicates that, in practice, the differences in the frequency and intensity with which these courts pass creative rulings are not as substantial as the discrepancy (...) in the theoretical stance would suggest. Owing to circumstances, both the German Federal Court of Justice and the Polish Supreme Court are willing to create new legal norms, but the dimensions of judicial law-making presented by these bodies deviate from each other. In the research sample, the German Federal Court of Justice was more inclined to introduce legal institutions that were foreign to the statutes and rule against the will of the lawmaker explicitly stated in the preparatory works. On the other hand, the Polish Supreme Court used logical conclusions more often, but did not also refrain from passing rulings against the clear wording of the statutory law, and was just as willing to go beyond the wording of the law as was the German Federal Court of Justice. Notably, only the German apex court is willing to openly admit that it creates new legal norms, whereas the Polish Supreme Court does not concede in the reasons that its decisions are of a law-making nature, especially when it applies so-called “interpretation in the wider sense”—which is, in essence, a “concealed” way of creating new legal norms. (shrink)

In the history of Lithuania during the period between the two world wars, the criminal law sources were received from Russia (Criminal Statute of 1903) and adapted for the requirements of those States, where the conditions of life were notably different from those in Lithuania. The Criminal Statute of 1903 was the main criminal law source in Lithuania until 1940. Prior to the second occupation—the return of the Soviets—tens of thousands of Lithuanian citizens fled to the (...) West, including a very large segment of the intelligentsia, university lecturers, professors and many lawyers. The lawyers in emigration were very socially active and founded a paper of law research—“Teisininkų žinios.” The article deals with the works and research of the emigration lawyers B. Nemickas, V. Vaitkevičius, P. Raulinaitis,V. Rastenis, D. Krivickas and others, in which they deal with the problem of Soviet criminal law. The lawyers analyse the sources of Soviet criminal law, which was the criminal law source in occupied Lithuania. (shrink)

The original versions of the five papers in this Symposium were delivered and discussed at a workshop at the University of Minnesota Law School on Criminal Responsibility and its History. One of the aims of the workshop was to bring together scholars working on the history of the criminal law and scholars whose main focus is on issues in normative criminal law theory, to explore the ways in which they can learn from each other, and to promote (...) a kind of dialogue between historical and normative theorising that is still too rare. Elizabeth Kamali’s exploration of the idea of felony in early English law, and Thomas A Green’s work on the Anglo-American jury, remind us of the importance of looking at the history of our contemporary institutions and concepts: we can understand the law that we now have only by attending to continuities and discontinuities in thought and practice that have marked its long, complex political and social history. Informed by the institutional and conceptual fram .. (shrink)

This paper concerns what if any obligations a “society of equals” has to criminal offenders after legal punishment ends. In the United States, when people leave prisons, they are confronted with a wide range of federal, state, and local laws that burden their ability to secure welfare benefits, public housing, employment opportunities, and student loans. Since the 1980s, these legal consequences of criminal convictions have steadily increased in their number, severity, and scope. The central question I want to (...) ask is whether the infliction of these burdensome legal consequences for those who have already been punished by the state is consistent with the ideal of equality. I argue that these collateral legal consequences violate relational egalitarian principles of justice and are thus objectionable. I conclude by examining possible objections to my argument. (shrink)

In _Criminalizing Sex_, Stuart P Green aims to provide a unified liberal theory of sexual offenses law. Green’s strategy is to provide a rational reconstruction of sexual offenses law that centres consent. In this article, I raise some doubts about whether Green fully succeeds in his aim. Nevertheless, _Criminalizing Sex_ is an impressive book, and essential reading for anyone interested in the liberal foundations of sexual offenses law.

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.

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 credibility assessments and the treatment of witnesses, especially in sexual assault cases. However, philosophical discussions often overlook the intricate (...) complexities of real procedural law and its underlying considerations. In its present form, the philosophical notion of epistemic injustice provides limited insights into legal discourse; it necessitates translation and adaptation. This study contributes to this endeavor by examining the contentious issue of testimony from witnesses who have undergone trauma-focused psychotherapy. Since the 1980s, courts worldwide were troubled with cases of false accusations based on false memories generated by suggestive therapeutic interventions. As a result, such post-therapy testimonies are discounted in one way or another in many jurisdictions. However, courts are still confronted with such testimonies, and the modi vivendi legal systems have established to deal with them continue to give rise to concerns about unjust treatment of witnesses. The question is thus whether legal rules or established practices of evaluating testimony based on memories which resurfaced after psychotherapy are epistemically and legally just. The paper presents seven ways in which courts may assess such testimonies and examines them in light of epistemic and procedural justice. Some of them prima facie constitute a form of epistemic injustice because they discount testimonies to an unwarranted degree. But these injustices might be justified by overriding principles favoring defendants. Nonetheless, the idea of epistemic justice, more broadly understood, inspires two principles that may serve as a foundation for a future conception of epistemic justice adapted to the law. (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)

This book explores how the design, construction, and use of robotics technology may affect today's legal systems and, more particularly, matters of responsibility and agency in criminal law, contractual obligations, and torts. By distinguishing between the behaviour of robots as tools of human interaction, and robots as proper agents in the legal arena, jurists will have to address a new generation of "hard cases." General disagreement may concern immunity in criminal law (e.g., the employment of robot soldiers in (...) battle), personal accountability for certain robots in contracts (e.g., robo-traders), much as clauses of strict liability and negligence-based responsibility in extra-contractual obligations (e.g., service robots in tort law). Since robots are here to stay, the aim of the law should be to wisely govern our mutual relationships. (shrink)

Anglo-American theories of criminal responsibility require scholars to grapple with, inter alia, the relationship between the formal rule of law and the powers of the lay jury as well as two inherent ideas of freedom: freedom of the will and political liberty. Here, by way of canvassing my past work and prefiguring future work, I sketch some elements of the history of the Anglo-American jury and offer some glimpses of commentary on the interplay between the jury—particularly its application of (...) conventional morality to criminal judgments—and the formal rule of law of the state. My central intent is to pose questions for further study regarding the historical behavior of the jury, the jury’s role in reinforcing notions of political liberty and free will, and, primarily, how scholarly conceptions of the jury’s role and behavior have informed elite theory regarding the justifications for imposing criminal responsibility. (shrink)

David Brink’s book Fair Opportunity & Responsibility is a meticulously argued and ultimately convincing book that carefully articulates the requirements for criminal guilt and punishment. As the title suggests, Brink argues that only one who has a fair opportunity to be law-abiding ought to be held responsible when they commit a crime. It is unfair to hold a person responsible if they lack abilities necessary to legal agency at the time of a wrongful act, or if these abilities are (...) severely compromised. In this essay I focus on Brink’s handling of structural injustice and the way it can impact our responsibility practices. Structural injustice is a serious and pervasive problem in the U.S., and it is closely related to crime rates. I argue that structural injustice can ground a partial excuse based on compromised normative competence. This is a possibility that Brink does not explore. Marginalization can compromise one’s ability to make and follow normative judgments in keeping with one’s larger society and the criminal law; and what makes some marginalized persons less culpable is that their ability to recognize and respond to moral and legal reasons is compromised compared to those that are not marginalized. (shrink)

Soon it may be possible to promote the rehabilitation of criminal offenders through _neurointerventions_ (interventions which exert direct physical, chemical or biological effects on the brain). Some jurisdictions already utilise neurointerventions to diminish the risk of sexual or drug-related reoffending. And investigation is underway into several other neurointerventions that might also have rehabilitative applications within criminal justice—for example, pharmacotherapy to reduce aggression or impulsivity. Ethical debate on the use of neurointerventions to facilitate rehabilitation—henceforth ‘neurorehabilitation’—has proceeded on two assumptions: (...) that we have instrumental reasons for employing neurorehabilitation (e.g. because it helps protect the public from crime); and that its permissibility depends upon whether its use unjustifiably infringes offenders’ rights. This paper defends a different, hitherto neglected thought. I argue we have rights-based reasons to offer neurorehabilitation to offenders—in other words, that offenders have a _moral right_ to neurorehabilitation. I identify three considerations which support a moral right to conventional rehabilitative interventions—(1) as a countermeasure to the debilitating side-effects of punishment; (2) as a derivative right of the right to hope for renewed liberty; and (3) as compensation for structural injustice. I argue these considerations extend to support a moral right to neurorehabilitation in the following instance: when neurorehabilitation would be part of the _most effective_ package for facilitating rehabilitation, and can be carried out at reasonable cost. I then defend my argument against potential objections, including the objection that neurorehabilitation is a bad option for offenders to have and the charge of over-medicalisation. (shrink)