Peace is more likely where there is trade and commerce between nation-states. However, many nations are "failed states" or "failing states," in large part because of civil wars. Yet, "business" may have a role to play here, too; as private military security companies (PMSCs) proliferate, governments and international organizations seem increasingly disposed to contract for their services, in some cases for combat roles as well as non-combat support roles in various conflict zones. This has raised questions about the ethics (...) of using private companies for public purposes, especially where (as now) private companies have operated outside of legal accountability. This article suggests ways in which such accountability can be put in place, such that PMSCs can actually serve the cause of securing local and regional stability as a first step toward establishing a much safer environment for people and for business. (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)

This essay provides an overview of the crime/tort distinction. It first investigates some of the fundamental differences between criminal law and tort law in doctrine and legal structure. It then explores some important similarities and differences in normative perspectives between the two doctrinal fields. This typology should prove analytically useful for examining some of the specific issues at the borderline of crime and torts—such as the proper scope of punitive damage liability and the question whether criminal law as well (...) as tort law should vary legal sanctions simply because of the fortuitous occurrence of harm. (shrink)

The essence of the moral luck question is whether the responsibility of persons is determined only in light of actions that are within their control or also in light of factors, such as the consequences of their actions, which are beyond their control. Most people seem to have contrasting intuitions regarding this question. On the one hand, there is a common intuition that the responsibility of persons should be judged only in light of what is within their control. On the (...) other hand, there is a strong intuition that the consequences of actions sometimes affect the responsibility of agents even when these consequences depend on factors that are beyond their control. A parallel dilemma is present in the law. Legal rules, particularly criminal law rules and tort rules, often differentiate between agents in light of factors that are beyond their control, and in this sense involve legal luck. Of course, factors beyond the control of persons, including the consequences of their actions, can be significant, with respect to the evaluation of the responsibility of persons for instrumental or epistemic reasons. The question is thus only with respect to the independent significance of factors beyond the control of agents, and particularly the consequences of actions, to the evaluation of the (extent of the) responsibility of agents. Benjamin Zipursky offers an interesting argument in order to support the intuition in favor of moral and legal luck, particularly with regard to consequences, especially the rule according to which the punishment of completed offences is more severe than the punishment of attempts and the rule that tort liability applies only to actions that have caused harm. The aim of this Comment is to evaluate this argument. I will try to consider to what extent Zipursky's explanation merely reiterates the familiar intuition that the normative evaluation of the conduct of persons should be influenced by consequential luck, and to what extent it provides new insights that might appeal also to those who are more forcefully drawn to the contrasting intuition that we should judge people only in light of factors that are within their control. I argue that while Zipursky's suggestions might appeal to those who already share the intuition in favor of (consequential) moral and legal luck, they would not convince those who have doubts regarding moral and legal luck. (shrink)

Parallel moral luck problems exist in three different normative domains: criminal law, tort law, and conventional moral thinking. In all three, the normative status of an actor’s conduct seems to depend on matters beyond the actor’s control. Criminal law has historically imposed greater punishment on the murderer who kills his intended victim than on the identically behaved would-be murderer whose shot fortuitously misses. Tort law imposes liability on the negligent driver who injures someone, but no liability if, through good fortune, (...) the negligence injures no one. And, as BernardWilliams and Thomas Nagel have famously argued, conventional moral thinking often attributes greater blame to an actor for wrongful conduct if that conduct ripens into a terrible event than if it fortuitously causes no harm at all. This Article distinguishes two different dimensions of responsibility and then uses this distinction to explain the problem in all three areas. One dimension is called "fault-expressing responsibility": it is a matter of the degree to which one’s acts constitute conduct that can express one’s character or faultiness. A second dimension of responsibility is called "agency-linking responsibility." In this dimension, the degree to which a person is responsible for some event is dependent upon whether that event is an action of that person. Responsibility can differ in the agency-linking dimension even if it remains the same in the fault-expressing dimension. (shrink)

This paper explicates a conception of injury as right-violation, which allows us to distinguish between setbacks to interests that should, and should not, be the concern of theories of justice. It begins by introducing a hybrid theory of rights, grounded in (a) the mobilisation of our moral equality to (b) protect our most important interests, and shows how violations of rights are the concern of justice, while setbacks where one of the twin grounds of rights is defeated are not. It (...) then looks more closely at the substantive moral components of injury, namely harm—damage to one’s interests—and wrong—disrespect for one’s moral equality. It argues that, on the hybrid conception of rights, harm and wrong are individually necessary and jointly sufficient components of injury, and the disvalue of neither is reducible to the other—in particular, it is a mistake to construe the disrespect identified by wrong as another damaged interest. Finally, it distinguishes between the public and private dimensions of harm and wrong, and makes some preliminary suggestions as to whether the remedy for these different dimensions should lie in criminal, distributive, or corrective justice. (shrink)

Purpose. The paper considers the establishment of the paradigmatic determinants of the understanding of crime on the basis of fundamental changes in understanding of the essence of a man in ancient, medieval, Renaissance, modern and postmodern philosophy. Theoretical basis. The author determines that the understanding of the concept of crime is possible only in the combination of historical, philosophical, legal and sociological approaches. The interpretation of the essence of this concept dynamics and relevant legal practices is based on structuralist, post-structuralist (...) and hermeneutical methodological principles. Originality. The author has proved that the concept of "crime" is not a constant but a historically variable category whose dynamics of meanings is linked to a change in philosophical anthropological paradigms. Its understanding is primarily related to the interpretation of the essence of a man and the imperatives of his behavior. This allows a new understanding of the philosophical foundations of modern criminology. Conclusions. The article establishes that in the history of Western philosophy, there are five anthropological paradigms that differ in a thorough rethinking of the essence of a man. The first cosmocentric regards man as a microcosm, his soul and actions must be in harmony with the harmony of the Cosmos. The second Theocentric considers a man the image and likeness of God, though he is at the same time burdened with original sin. In the era of early Modernism, the third paradigm, which we called cognitive-centric, becomes dominant, since the essence of a man is reduced primarily to his mind. It gradually changes to the fourth – sociocentric, which focuses on the social essence of a man. However, despite its continued existence in our time, at the end of the XX century, there is a transition to the fifth paradigm – postmodernist, which deconstructs the essence of a man, reducing it to the role of an element of power systems. These paradigms, with a certain synchronicity, create the corresponding concepts of "crime": from violation of polis-space laws to identification with sin, from non-observance of mental and moral standards to social deviance. Contemporary understandings of crime are, for the most part, relativistic and constructivist, which is consistent with the postmodern anthropological paradigm. However, the diversity of interpretations of the concept of "crime" that exists in the current scientific literature needs further comprehension. (shrink)

In this paper I discuss the nature of consent in general, and as it applies to Carlos Nino’s consensual theory of punishment. For Nino the criminal’s consent to change her legal-normative status is a form of implied consent. I distinguish three types of implied consent: 1) implied consent which is based on an operative convention (i.e. tacit consent); 2) implied consent where there is no operative convention; 3) “direct consent” to the legal-normative consequences of a proscribed act – this is (...) the consent which Nino employs. I argue that Nino’s conception of consent in crime exhibits many common features of “everyday” consent, which justify that it be classed as a form of (implied) consent. h us, Nino is right to claim that the consent in crime is similar to the consent in contracts and to the consent to assume a risk in tort law. (shrink)

Between 1904 and 1908, German colonialists in German South West Africa (GSWA, known today as Namibia) committed genocide and other international crimes against two indigenous groups, the Herero and the Nama. From the late 1990s, the Herero have sought reparations from the German government and several German corporations for what occurred more than a hundred years ago. This article examines and contextualizes the issues concerning reparations for historical human rights claims. It describes and analyzes the events in GSWA at (...) the time. It further explores whether international humanitarian law and international human rights law today permit reparatations to be obtained. The article therefore examines the origins of international criminal law, as well as international human rights and humanitarian law, to determine whether what occurred then were violations of the law already in force. Finally, the article examines and evaluates the Herero reparations cases, as well as the potential impact of the cases on the wider reparations movement that sees an increasing number of claims for events that occurred during colonial times. (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)

This updated and revised second edition of Donald A. Wells's popular 'War Crimes and Laws of War', originally published in 1984, traces the rules of war since ancient times. The major sources of the rules or 'laws' of war are explored: the congresses of the Hague, Geneva, and the United Nations. But an abyss exists between what military manuals allow and what the congresses prohibit; this book attempts to resolve this dilemma. An important text for military college courses and (...) international relations, as well as social philosophy courses. Co-published with the North American Society for Social Philosophy. Here is what reviewers had to say about the first edition. (shrink)

The purpose of this paper is to discuss and to relate to each other two topics: the admissibility of ignorance and mistake of fact as defences against negligence in crime; and the inadmissibility of ignorance and mistake of law as defences against criminal charges. I am in not concerned at all with torts negligence, only with criminal offences which can be committed negligently, where negligence suffices for liability, as in the law of homicide. This produces an untidy classification of (...) elements, one or other of which is needed to provide the required mens rea : intention, knowledge, recklessness and negligence. It is untidy, because the last does not belong on the same list as the other three, each of which can appropriately be called a state of mind in what we might say to be a positive sense, for each of them includes some degree of awareness of and/or attitude to relevant facts. If negligence is to be called a state of mind, it is so in a very stretched and negative way: to be told that a person was not attending to, thinking of or noticing something that he should have been is to be given some information, of a negative sort, about his state of mind, but it tells us very little, for it eliminates only one of an unlimited range of states of mind. His not attending, noticing, etc., is equally compatible with his daydreaming and with his concentrating hard on something else. If negligence requires inadvertence, as is commonly maintained, then there was a state of mind which the agent should have been in but was not; if, as I would argue, it does not require inadvertence, then there was a state of mind which the agent should have been in, and maybe he was not in it, maybe he was in it. would not require it; the definition runs, ‘a person is negligent if he fails to exercise such care, skill or foresight as a reasonable man in his situation would exercise’. However, that is only a proposal; at present advertent negligence is rare in criminal law, although common in torts.) On this view, the questions are whether his performance fell below scratch, what are to be the excusing conditions for such a performance, and if the answer to is yes, whether his performance was covered by the excusing conditions. (shrink)

An evidence-based approach to crime and justice policy can go a long way toward ensuring that the best available research is considered in decisions that bear on the public good. However, the term "evidence-based" is characterized by a great deal of rhetoric. Indeed, there remains a marked disjuncture between calls for "evidence-based" policy and an understanding of what it means for policy to be "evidence-based." The calls for evidence-based policy nonetheless provide a powerful foundation for propelling a movement toward bringing (...) about rational, cost-effective, and humane policies for the betterment of society. This handbook showcases the state of research on evidence-based crime and justice policy and the challenges that impede its creation and use. The volume has three core objectives: to promote new and productive ways to think about evidence-based policy; to demonstrate how research can contribute to and guide evidence-based policy in juvenile justice, criminal justice, and alternatives to system responses; and to identify strategies that can increase reliance on evidence-based policy. To meet these objectives, each chapter is guided by several central questions: What do we know about evidence-based policy and practice in crime and justice? How can we improve knowledge of evidence-based policy and practice? How can we promote more use of evidence-based policy and practice? Taken as a whole, the volume emphasizes the critical need for policies that are grounded in high-quality research, that address critical research gaps, and that fully acknowledge the limitations of what extant research can do to inform policy decisions. (shrink)

Is it permissible to be a fan of an artist or a sports team that has behaved immorally? While this issue has recently been the subject of widespread public debate, it has received little attention in the philosophical literature. This paper will investigate this issue by examining the nature and ethics of fandom. I will argue that the crimes and misdemeanors of the object of fandom provide three kinds of moral reasons for fans to abandon their fandom. First, being (...) a fan of the immoral may provide support for their immoral behavior. Second, fandom alters our perception in ways that will often lead us to be fail to perceive our idol’s faults and even to adopting immoral points of view in order to be able to maintain the positive view we have of them. Third, fandom, like friendship, may lead us to engage in acts of loyalty to protect the interests of our idols. This gives fans of the immoral good reason to abandon their fandom. However, these reasons will not always be conclusive and, in some cases, it may be possible to instead adopt a critical form of fandom. (shrink)

This is a paperback reprint of a book published in 1989. In this comprehensive treatise Greenawalt explores the three-way relationship between the idea of freedom of speech, the law of crimes, and the many uses of language. He begins by considering free speech as a political principle, and after a thorough and incisive analysis of the justifications commonly advanced for freedom of speech, looks at the kinds of communications to which the principle of free speech applies. He then turns (...) to an examination of communications for which criminal liability is fixed. Focusing on threats and solicitations to crime, he attempts to determine whether liability for such communications seriously conflicts with freedom of speech. He then goes on to develop the significance of his conclusions for American constitutional law. (shrink)

Preface: help! my brainchild's been kidnapped! -- Intellectual misconduct: backwards, forward, and sideways -- The world of scholarship: rituals and rewards, norms and departures -- Structural and organizational causes of scholarly misconduct -- Cultural causes of scholarly misconduct -- Individual and situational causes of scholarly misconduct -- Scholarly misconduct as crime -- Criminological theory and scholarly crime -- Implications for theory and research -- Preventing and controlling scholarly crime -- Afterword: against all odds, a code is born.

Darwin’s (1871/1981) observation that evolution has produced in us certain emotions responding to right and wrong conduct that lack any obvious basis in individual utility is a useful springboard from which to clarify the role of emotion in moral judgment. The problem is whether a certain class of moral judgment is “constituted” or “driven by” emotion (Greene, 2008, p. 108) or merely correlated with emotion while being generated by unconscious computations (e.g., Huebner, Dwyer, & Hauser, 2008). With one exception, all (...) of the “personal” vignettes devised by Greene and colleagues (2001, 2004) and subsequently used by other researchers (e.g., Koenigs et al., 2007), in their fMRI and behavioral studies of emotional engagement in moral judgment, involve violent crimes or torts. These studies thus do much more than highlight the role of emotion in moral judgment; they also support the classical rationalist thesis that moral rules are engraved in the mind. (shrink)

The purpose of this paper is to discuss and to relate to each other two topics: the admissibility of ignorance and mistake of fact as defences against negligence in crime; and the inadmissibility of ignorance and mistake of law as defences against criminal charges. I am in not concerned at all with torts negligence, only with criminal offences which can be committed negligently, where negligence suffices for liability, as in the law of homicide. This produces an untidy classification of (...) elements, one or other of which is needed to provide the required mens rea : intention, knowledge, recklessness and negligence. It is untidy, because the last does not belong on the same list as the other three, each of which can appropriately be called a state of mind in what we might say to be a positive sense, for each of them includes some degree of awareness of and/or attitude to relevant facts. If negligence is to be called a state of mind, it is so in a very stretched and negative way: to be told that a person was not attending to, thinking of or noticing something that he should have been is to be given some information, of a negative sort, about his state of mind, but it tells us very little, for it eliminates only one of an unlimited range of states of mind. His not attending, noticing, etc., is equally compatible with his daydreaming and with his concentrating hard on something else. If negligence requires inadvertence, as is commonly maintained, then there was a state of mind which the agent should have been in but was not; if, as I would argue, it does not require inadvertence, then there was a state of mind which the agent should have been in, and maybe he was not in it, maybe he was in it. would not require it; the definition runs, ‘a person is negligent if he fails to exercise such care, skill or foresight as a reasonable man in his situation would exercise’. However, that is only a proposal; at present advertent negligence is rare in criminal law, although common in torts.) On this view, the questions are whether his performance fell below scratch, what are to be the excusing conditions for such a performance, and if the answer to is yes, whether his performance was covered by the excusing conditions. (shrink)

Recent developments in neuroscience and social science are illuminating the critical importance of regret in human choices, including criminal decision making. After differentiating regret from related emotions (e.g., disappointment, sadness, shame), I argue that regret can prompt desistance from crime and that regret avoidance is a powerful mechanism of conformity. I then turn to American and European penal history to demonstrate that the invention of the prison was premised on the notion that solitary confinement could inculcate regret in prisoners and (...) thereby change them profoundly. The place of regret in both historical and emerging thinking about human choice underscores its importance for understanding the connections between emotions and criminality. (shrink)

This book charts the historical development of 'forensic objectivity' through an analysis of the ways in which objective knowledge of crimes, crime scenes, crime materials and criminals is achieved. Taking an interdisciplinary approach, with authors drawn from law, history, sociology and science and technology studies, this work shows how forensic objectivity is constructed through detailed crime history case studies, mainly in relation to murder, set in Scotland, England, Germany, Sweden, USA and Ireland. Starting from the mid-nineteenth century and continuing (...) to the present day, the book argues that a number of developments were crucial. These include: the beginning of crime photography, the use of diagrams and models specially constructed for the courtroom so jurors could be ‘virtual witnesses’, probabilistic models of certainty, the professionalization of medical and scientific expert witnesses and their networks, ways of measuring, recording and developing criminal records and the role of the media, particularly newspapers in reporting on crime, criminals and legal proceedings and their part in the shaping of public opinion on crime. This essential title demonstrates the ways in which forensic objectivity has become a central concept in relation to criminal justice over a period spanning 170 years. (shrink)

There is an ever-increasing interest in the question of how and why legal norms can effectively guide human action. This compact volume demonstrates how economic tools can be used to examine this question and scrutinize these legal norms. Indeed, this is one of the first text to be based on civil law instead of the more usual common law, situating the study of both private and public law within the framework of institutional economics, with recommendations for further reading and a (...) list of key terms in each chapter. Besides the standard economic problems in property, tort, contract, crime and litigation, areas covered include: new institutional economics public choice constitutional law public administrations regulatory impact analysis. This book is essential reading for students in law schools and economics departments alike, particularly those engaged with the methodology of law and economics, applied economics and economic methods of legal policy. (shrink)

Contemporary tort theory is dominated by a debate between legal economists and corrective-justice theorists. Legal economists suppose that tortfeasors and tortious wrongs are false targets for cheapest cost-avoiders and avoidable future losses. Corrective-justice theorists argue powerfully that the economic account of tort as search for cheapest cost-avoiders with respect to future accidents does not capture the most fundamental fact about tort adjudication, namely, that the reason we hold defendants liable in tort is that they have wronged their victims and should (...) therefore repair the harm they have done. Deterring cheapest cost-avoiders from committing future harms no more justifies imposing liability in tort than deterring future crime justifies hanging the innocent. This is a powerful critique of the economic theory of tort, but it overshoots the mark. As an account of tort law, corrective justice puts the cart before the horse Tort is a law of wrongs, not just a law of redress for wrongs. Repairing harm wrongly done is the next best way of complying with an obligation not to do harm wrongly in the first place. Rights and remedies form a unity in which rights have priority. Corrective justice is thus an essential but subordinate aspect of tort. This paper develops this line of criticism of corrective-justice theory and offers an alternative account of tort that places primary norms of harm avoidance and respect for rights at its center. On this conception, tort isa law of wrongs, but its distinctiveness lies in the content and character of the wrongs with which it is concerned. At its core, tort is concerned with protecting essential conditions of individual agency. (shrink)

America frequently talks about impeaching a president, but the impeachment provisions of the American constitution are widely misunderstood. In High Crimes and Misdemeanors, constitutional scholar Frank O. Bowman, III offers unprecedented clarity to the question of impeachment, tracing its roots to medieval England through its adoption in the Constitution and 250 years of American experience. By examining the human and political history of those who have faced impeachment, Bowman demonstrates that the Framers intended impeachment to be a flexible tool, (...) adaptable to the needs of any age. Written in a lively, engaging style, the book combines a deep historical and constitutional analysis of the impeachment clauses, a coherent theory of when impeachment should be used to protect constitutional order against presidential misconduct, and a comprehensive presentation of the case for and against impeachment of President Trump. It is an indispensable work for the present moment. (shrink)

In a paper published in 2006, I argued that the best way of defending something like our current practices of punishing war criminals would be to base the justification of this practice on an expressive theory of punishment. I considered two forms that such a justification could take—a ‘denunciatory’ account, on which the purpose of punishment is supposed to communicate a commitment to certain kinds of standard to individuals other than the criminal and a ‘communicative’ account, on which the purpose (...) of the punishment is to communicate with the perpetrator, and argued for a denunciatory account which I developed at some length. In this paper I would like to reconsider the plausibility of a communicative account. One difficulty that such accounts face is that the punishment of war criminals often involves the inflicting of harsh treatment on them by individuals who are members of states other than their own. On a communicative account this is problematic: on such an account—or at least on the version of it proposed by Duff (2000)—it is essential that those who are punish and those who punish them belong to a single community. When this requirement is not satisfied harsh treatment does not constitute punishment. Duff has argued that the problem can be solved by regarding all human beings as members of a single moral community: here I argue that this suggestion is unsatisfactory and propose an alternative. One consequence of my account is that if it is correct there may limitations on the range of kinds of war criminal that can legitimately be punished by international tribunals. (shrink)

Recent research in moral psychology has attempted to characterize patterns of moral judgments of actions in terms of the causal and intentional properties of those actions. The present study directly compares the roles of consequence, causation, belief and desire in determining moral judgments. Judgments of the wrongness or permissibility of action were found to rely principally on the mental states of an agent, while judgments of blame and punishment are found to rely jointly on mental states and the causal connection (...) of an agent to a harmful consequence. Also, selectively for judgments of punishment and blame, people who attempt but fail to cause harm more are judged more leniently if the harm occurs by independent means than if the harm does not occur at all. An account of these phenomena is proposed that distinguishes two processes of moral judgment: one which begins with harmful consequences and seeks a causally responsible agent, and the other which begins with an action and analyzes the mental states responsible for that action. Ó 2008 Elsevier B.V. All rights reserved. (shrink)

This paper discusses what kinds of conflicts arise when a crime has been committed, and with whom—and in which of their possible roles—the offender should be seen as having such conflicts. The possible roles of the victim are in focus, as is the constitutive role of the act of criminalizing a certain kind of behavior. It is argued that while in the tort conflict the victim should be seen as a party qua him- or herself in a ‘fuller’ sense (and (...) with full freedom on how to handle the conflict, including dropping it), in the criminal law conflict it is community, the ‘we’, that should be looked upon as the party to the conflict with the offender. The victim should not be seen as excluded from the criminal law conflict, though: to the contrary, he or she is a member of community and has an important role to play. This role, however, needs to be strictly defined in a way that gives the victim the function of a certain kind of representative for ‘us’, the community. This role should not allow the victim much room to influence how the criminal law conflict is handled. The model I am suggesting presupposes—I think, at least—that criminal law conflict and tort conflict should be handled together at the same trial. (shrink)

Societies and communities are understood as orders (or laws) of persons, i.e., types of arrangements of human relations that are in principle conflict-free or equipped to solve conflicts among their members. As not all human relations fall into member-member patterns, there is need for the concept of a natural order (law) of persons, regardless of their memberships. The main theme is the comparison of the three orders, with special focus on how they deal with crime, punishment and law enforcement.

This paper takes up Nietzsche’s contrast between a relatively enduring ‘drama’ of punishment, which consists in sequences of procedures, and a congeries of often discrepant meanings and purposes of the drama and contrasts it favorably with the distinction between a definition of punishment and a justification for it which received a good deal of attention in the middle of the twentieth century in anglophone philosophical circles. My chief thesis is that the philosophical lesson to be drawn from the widely acknowledge (...) failure of efforts to further the philosophical understanding of punishment by the latter route is Nietzsche’s: that the concept in question and the practices that fall under it are fundamentally insusceptible to ahistorical methods. I argue for the thesis proper in the first section of the paper, and explore consequences of it for our understanding of the connection between punishment and justice in the second. (shrink)

The article discusses the link between freedom, crime and punishment. According to some theorists, crime does not only cause a person to have less freedom; it constitutes, _in and of itself_, a breach of the freedom of others. Punishment does not only cause people to have more freedom, for instance by preventing crimes; it constitutes, _in and of itself_, respect for mutual freedom. If the latter claims are true, crime and punishment must have certain _meanings_ that make them denials/affirmations (...) of freedom irrespective of their consequences. My aim is to show that such an immanent connection between crime/punishment and freedom exists. I do so by explicating the “natural meaning” of crime and punishment. This way of addressing the topic is inspired by Jean Hampton’s use of H. P. Grice’s concept of natural meaning. Expanding on Hampton’s theory, drawing on both H. L. A. Hart and Kant, I argue that crime has the natural meaning of denying freedom, and punishment has the natural meaning of affirming freedom. The paper presents an ideal theory, not a justification for actual criminal justice practices, which in most countries unfortunately fail to instantiate the value of mutual freedom. (shrink)

The purpose of the study is to consider the concept of "philosopheme", which allows analyzing such basic categories of philosophical and legal reflections of the writer and thinker F.M. Dostoevsky as crime and punishment and correlating their interpretation with his personal life experience. The scientific novelty of the work lies in the fact that through the disclosure of the content of the philosophems "crime" and "punishment", the existential aspects of F.M. Dostoevsky's anthropological and philosophical-legal reflections are revealed. As a result (...) of the analysis of Dostoevsky's novel "Crime and Punishment", his other works, the writer's letters, autobiographical testimonies, it becomes clear that the core of these philosophies for Dostoevsky is a moral code that allows a person to overcome the" disconnection "and" disconnection " of modern man's being both with himself and with society. (shrink)

Gordon's emphasizes that the process of prosecution is crucial to the idea of crime. One who commits a public wrong is properly called to public account for it, and the criminal trial constitutes such a public calling to account. The state is the proper prosecutor of crimes: since a crime is ‘our’ wrong, rather than only the victim's wrong, it is appropriate that we should prosecute it, collectively. The case is not simply V the victim, or P the plaintiff, (...) against D the defendant. It is brought, as the Americans properly have it, by ‘the People’, or by ‘the Commonwealth’, against the defendant. This is a useful way in which to think about crimes and criminalisation. This chapter tries to develop this conception of public wrongs a little further, which also involves complicating it more than a little. It works from a version of liberal communitarianism that rejects the metaphysical version of the individualist's ‘unencumbered self’; but the account sketched here should be compatible with all but the most radically individualist kinds of liberal theory. (shrink)

Over the last forty-five years, there have been three monumental stories on the national American crime scene: a run up in crime in the 1960s, a move towards a more punitive American justice system starting in the 1970s, and a strong decline in US crime rates beginning in the 1990s. At the center of understanding these three stories lies Gary Becker's pioneering work on the economics of crime . Becker offered a price theoretical model in which criminals are viewed as (...) rational actors seeking to maximize their benefits in choosing certain criminal actions while minimizing their costs. Becker's model has not only shaped academic debate on the topic of criminal behavior since the 70s, but it has also had a powerful impact on governmental policies regarding crime and justice. Most significantly, Becker's work_—with some of its nuance overlooked_—ended up providing intellectual backing to the increasingly punitive and harsh nature of the American justice system, as reflected in the massive increases in incarceration levels and the revival of the use of the death penalty.While Becker correctly predicted that massive increases in incarceration would have a dampening effect on crime, the supporters of this policy have not been attentive to the need to weigh costs as well as benefits in assessing the major prison build-up. Evidence that equal crime reductions could be achieved through targeted social spending merits consideration, since Becker noted that improving the legal opportunities available to potential criminals could be as potent a deterrent to crime as increasing the cost of criminal choices. Furthermore, I review current research in the death penalty debate and argue that—contrary to the positions defended by Becker and many ardent disciples of price-theory— the empirical evidence does not currently support the conclusion that the death penalty as administered in the United States has served as a deterrent to crime. (shrink)

In print for the first time in over ten years, Act and Crime provides a unified account of the theory of action presupposed by both Anglo-American criminal law and the morality that underlies it. The book defends the view that human actions are always volitionally caused bodily movements and nothing else. The theory is used to illuminate three major problems in the drafting and the interpretation of criminal codes: 1) what the voluntary act requirement both does and should require; 2) (...) what complex descriptions of actions prohibited by criminal codes both do and should require ; and 3) when two actions are 'the same' for purposes of assessing whether multiple prosecutions and multiple punishments are warranted. The book both contributes to the development of a coherent theory of action in philosophy, and it provides both legislators and judges a grounding in three of the most basic elements of criminal liability. (shrink)

Fear of public disclosure that will add to the humiliation of rape or other sexual assault is real for victims. In discussing this issue, cases for concealment and for disclosure are examined and suggestions are made for determining whether to publish names of victims.

In 2002, a child was abandoned in a Burger King restaurant in Amsterdam by a Chinese woman, who hoped that the baby would be picked up by someone able to give the child a better life. She was convicted for child abandonment and imprisoned. Whereas some forms of child abandonment are criminalised, others are socially accepted and not even on the ethics agenda. This paper is an invitation to reflect on the inconsistency in the ways in which we prosecute, punish (...) or try to correct some forms of child abandonment and yet make allowances for others. (shrink)

One of the most influential arguments in contemporary philosophy and cognitive science is Chomsky's argument from the poverty of the stimulus. In this response to an essay by Chandra Sripada, I defend an analogous argument from the poverty of the moral stimulus. I argue that Sripada's criticism of moral nativism appears to rest on the mistaken assumption that the learning target in moral cognition consists of a series of simple imperatives, such as "share your toys" or "don't hit other children." (...) In fact, the available evidence suggests that the moral competence of adults and even young children is considerably more complex and exhibits many characteristics of a well-developed legal code, including abstract theories of crime, tort, contract, and agency. Since the emergence of this knowledge cannot be explained by appeals to explicit instruction, or to any known processes of imitation, internalization, socialization and the like, there are grounds for concluding it may be innate. Simply put, to explain the development of intuitive jurisprudence in each individual, we must attribute unconscious knowledge and complex mental operations to her that go well beyond anything she has been taught. (shrink)

It is widely acknowledged that human rights law and international criminal law 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 normative foundations of those norms and to the legitimate role of international courts and tribunals adjudicating those norms. With a view to bring the (...) debate forward, I then turn to the practices of HRL and international criminal law to examine which of those approaches best illuminates some salient aspects of the adjudication of ICs. Finally, I argue that the political approach best explains the practice. While each preserves a distinct role, HRL and ICL both establish the basic conditions for the primary subject of international law, namely the state, to legitimately govern its own subjects constructed as free and equal moral agents. (shrink)