The article deals with the entrenchment of the institute of criminal liability of a legal person in the Lithuanian criminal law. Upon approval of the Criminal Code of the Republic of Lithuania (hereinafter also referred to as the CC) on 26 September 2000, the criminal liability of a legal person was provided almost in every fifth (at present—in every second) article of the Special Part of the CC. Although criminal liability has been increasingly applied to (...) legal persons (e.g., in 2011, if compared to 2005, almost three times as much punishments were imposed), however, almost 90 percent of the articles of the CC providing also for criminal liability of a legal person are “dead”. One doubt arises with regard to social legitimacy of such lawmaking and the quality thereof in the sense of juridical technique. (shrink)

This first volume in the four-volume series The Moral Limits of the Criminal Law focuses on the "harm principle," the commonsense view that prevention of harm to persons other than the perpetrator is a legitimate purpose of criminal legislation. Feinberg presents a detailed analysis of the concept and definition of harm and applies it to a host of practical and theoretical issues, showing how the harm principle must be interpreted if it is to be a plausible guide to (...) the lawmaker. (shrink)

The legalization of physician-assisted suicide remains a hotly debated issue throughout the United States, and continues to capture the attention of government officials at both the state and federal levels. While the practice is currently legal in Oregon, some federal lawmakers and officials from the U.S. Department of Justice have attempted to outlaw that state's practice through legislation, or through a strained interpretation of the federal Controlled Substances Act. And while several citizen groups throughout the United States have attempted but (...) failed to legalize PAS through popular initiative, several state lawmakers have succeeded in specifically outlawing the practice. Yet even though physician-assisted suicide remains unlawful in every state except Oregon, there is ample evidence that American physicians throughout the United States have participated in PAS by providing their terminally ill patients with lethal prescriptions. (shrink)

The legalization of physician-assisted suicide remains a hotly debated issue throughout the United States, and continues to capture the attention of government officials at both the state and federal levels. While the practice is currently legal in Oregon, some federal lawmakers and officials from the U.S. Department of Justice have attempted to outlaw that state's practice through legislation, or through a strained interpretation of the federal Controlled Substances Act. And while several citizen groups throughout the United States have attempted but (...) failed to legalize PAS through popular initiative, several state lawmakers have succeeded in specifically outlawing the practice. Yet even though physician-assisted suicide remains unlawful in every state except Oregon, there is ample evidence that American physicians throughout the United States have participated in PAS by providing their terminally ill patients with lethal prescriptions. (shrink)

The tendencies of the development of the Lithuanian criminal procedure within the recent twenty years, after Lithuania has regained its independence, are analyzed in the present article. The main factors which influence lawmaking in the sphere of criminal procedure as well as in the application of the criminal procedure norms are discussed. The constitutional imperatives and the human rights, fixed in international and the European Union agreements as the main factors determining the evolution of the law (...) of criminal procedure are reviewed. It is stated that earlier, while amending or supplementing the Code of Criminal Procedure, the utmost attention used to the drawn to the legal tradition of the state, whereas the legal norms of the modern criminal procedure must be subordinated to the principles fixed in the Constitution. After having briefly reviewed the main tendencies of the development of criminal procedure, i.e. the constitutionalization and internationalizationeuropeization, the following conclusion is drawn: the mentioned tendencies have been producing a significant impact on the evolution of the Lithuanian criminal procedure after the restoration of independence and accession to the international treaties. However, the systemic and critical viewpoint towards the impact of the European Union law on the national law of criminal procedure is still missing. (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)

While many possible goals could be achieved by punishing offenders, the reality of punishment in today's criminal justice system is that lawmakers have created the illusion of purpose in punishment when in fact the expectations are unrealistic and the options for punishment too few to expect the simultaneous accomplishment of all possible desirable goals. This lack of clear purpose has led to a punishment policy shaped largely by what some scholars refer to as “paranoid politicians,” who have used public (...) fear of crime as a fulcrum to launch “tough on crime” policies. Over a long period of time, this process has created a punishment system that many scholars argue has become too harsh and exceeds what a system of just deserts would allow for. This outcome has led some to propose that systematic mercy be implemented where appropriate, in order to offset the perceived harshness of the criminal justice system. While such a proposal is problematic, a re-evaluation of punishment policy seems appropriate. This paper suggests that any re-evaluation of punishment policy should include provisions for a broader consideration of victims' issues in sentencing as an integral part of the implementation of punishment in a truly just system. (shrink)

ABSTRACTThere are two distinct types of legal wrongdoing: civil and criminal. This article demonstrates in three ways that Immanuel Kant's Universal Principle of Right, properly interpreted, offers a plausible and resilient account of this important distinction. First, Kant's principle correctly identifies attempted crimes as crimes themselves even when they do not violate the rights of any individual. Second, it justifies our treatment of reckless endangerment as a crime by distinguishing it from ordinary negligence, traditionally thought to be only civilly (...) wrong. Third, it explains and justifies differences between the features of traditional criminal punishments and the features of civil remedies. Moreover, the Universal Principle of Right yields a Kantian standard for criminal wrongdoing that is compelling enough to inform future philosophical inquiries into the nature and limits of the state's criminal lawmaking authority. (shrink)

In this chapter, Altman gives two separate arguments that, in conjunction, support a mixed theory of punishment. First, he shows that consequentialism is insufficient on its own because it cannot capture the condemnatory function of the law as an expression of the community’s resentment. Second, he shows that retributivism is insufficient on its own because any plausible legal arrangement must be committed to some non-retributivist values. He then argues that the institution of punishment is justified by its costs and benefits, (...) and the distribution of punishment—who is punished and how much—is justified by what offenders deserve. This two-tiered model of punishment makes more sense than an alternative scheme, according to which retributivist reasoning informs criminal lawmaking and consequentialist reasoning informs criminal judgments and sentencing. (shrink)

A focus on the lawmaking process, I submit, permits us to explore a particular dimension of justice, namely the relationship between law and liberty. Laws that reflect the arbitrary whims of the lawmaker are presumptively unjust, because they constrain liberty for no good reason. A strategy for making arbitrary laws less likely involves recognizing checks on the lawmaker's powers and grounding those checks in processes that allow the governed to express their disapproval. The system of checks and balances employed (...) in the U.S. Constitution embodies this strategy, although reasonable people can debate its efficacy. As A.O. Hirschman observed, regimes that permit free movement of persons and property similarly restrict the force of arbitrary rules by allowing exit from unwanted restrictions. I want to inquire into the role of checks in international lawmaking. At first blush, it might appear that the fundamental principle of state consent provides all the checking that international lawmaking needs. This principle maintains that a state (and by extension, its subjects) can be bound by a rule of international law only if that state manifests its consent to the rule. As long as states have a real choice, itself subject to internal checks on official decisionmaking, the adoption of the rule should meet basic criteria of procedural justice. Indeed, the correlate of this principle—that each state has a veto over the adoption of international law, at least as applied to itself and its subjects—suggests that international lawmaking poses less of a threat to liberty than do conventional municipal lawmaking processes based on majority rule. One might think that, as a result of this principle, no rule will attain the status of international law unless its adoption makes some states better off and no state worse off. This first impression, however, is wrong. First, international lawyers argue for the existence of jus cogens norms that apply regardless of state consent. Second, the concept of state consent is artful, and opportunistic decisionmakers have some freedom to construe consent in ways that circumvent conventional checking processes. Third, political and economic coercion can reduce state consent to a meaningless formality. I discuss each of these points in turn. Once state consent ceases to constrain international lawmaking, the question role of alternative checks to protect liberty looms. Under what circumstances does the international lawmaking process as currently constituted present a threat of arbitrary force? What kinds of resistance to the results of international lawmaking can process values justify? I address these questions in three steps. First, I explore whether international law does carry a threat of coercion. If not, concerns about arbitrary restrictions of liberty are misplaced. Second, I discuss the problems arising from delegations of lawmaking authority to international institutions, with specific reference to the Rome Statute and the International Criminal Court. Third, I discuss the process-value issues associated with judicial lawmaking. None of these concerns justifies blanket opposition to international lawmaking. Rather, those interested in making and enforcing international rules need to grapple with these issues and provide another layer of justification for their efforts. a Footnotesa I am indebted to Ken Abbott, Jean Cohen, Larry Helfer, Robert Hockett, Sean Murphy, Phil Nichols, Ed Swaine, Joel Trachtman, the other contributors to this volume, and participants in a workshop at the University of Virginia School of Law for comments and criticism. Shortcomings are mine alone. (shrink)

This first volume in the four-volume series The Moral Limits of the Criminal Law focuses on the "harm principle," the commonsense view that prevention of harm to persons other than the perpetrator is a legitimate purpose of criminal legislation. Feinberg presents a detailed analysis of the concept and definition of harm and applies it to a host of practical and theoretical issues, showing how the harm principle must be interpreted if it is to be a plausible guide to (...) the lawmaker. (shrink)

A legitimate expectation in a liberal democracy is that public officials enforce the law regardless of its content; when they don’t do so, their actions tend to be publicly condemned. This expectation puts street-level bureaucrats in a moral dilemma when they consider that a certain law is unjust: either they don’t enforce the law and violate their duties to the citizenry, or they enforce it and become complicit in injustices. This paper argues for the legal permission of public officials to (...) disregard legal mandates for moral reasons. Call it official disobedience. Contrary to common intuitions, I show that official disobedience would foster the principles of and improve governance in liberal democracies: it accommodates public officials’ personal autonomy and yields three main democratic benefits. First, information about the outcomes of the law would become available for lawmakers; second, in the aggregate, it would protect citizens from injustices; third, it would improve the moral character of bureaucrats. (shrink)

This chapter contains section titled: Images of Legislation Legislation in Legal Theory Analytics of the Legislative Process Interpreting and Applying Legislation A Forum of Principle? References.

In June 2015, the Supreme Court of Canada struck down the Criminal Code's prohibition on assisted death. Just over a year later, the federal government crafted legislation to entrench medical assistance in dying (MAiD), the term used in Canada in place of physician‐assisted death. Notably, Canada became the first country to allow nurse practitioners to act as assessors and providers, a result of a strong lobby by the Canadian Nurses Association. However, a legislated approach to assisted death has proven (...) challenging in a number of areas. Although it facilitates a degree of accountability, precision and accessibility, it has also resulted in particular challenges negotiating the diverse perspectives of such a morally contentious act. One of these challenges is the tendency to conflate what is legal and what is moral in a modern liberal constitutionalism that places supreme value on autonomy and choice. Such a conflation tends to render invisible the legal and moral/ethical considerations necessary for nurses and nurse practitioners to remain ethical actors. In this paper, we introduce this conflation and then discuss the process of lawmaking in Canada, including the legalization of MAiD and the contributions of nursing to that legalization. We then engage in a hypothetical dialogue about the legal and moral/ethical implications of MAiD for nursing in Canada. We conclude with an appeal for morally sustainable workspaces that, when implementing MAiD, appropriately balance patient choices and nurses’ moral well‐being. (shrink)

This first volume in the four-volume series The Moral Limits of the Criminal Law focuses on the "harm principle," the commonsense view that prevention of harm to persons other than the perpetrator is a legitimate purpose of criminal legislation. Feinberg presents a detailed analysis of the concept and definition of harm and applies it to a host of practical and theoretical issues, showing how the harm principle must be interpreted if it is to be a plausible guide to (...) the lawmaker. (shrink)

Sex work’s governance throughout the Commonwealth has historically been animated by the objective of rendering the sale of sex, and those who engage in such transactions, invisible. To achieve this end, lawmakers have characterized public, viewable sex work as a nuisance meriting criminalization. Although prohibition results in unequivocal perils for sex workers, governance strategies in this domain remain centred on criminalization. A new law in Canada, Bill C-36: the Protection of Communities and Exploited Persons Act, exemplifies this point. While Bill (...) C-36 purports to shift criminal law’s focus from sex workers to their clients and profiteers, it continues to expose sex workers who work in public view to criminal prosecution. It thereby preserves sex work’s characterization as a nuisance, offensive to a community’s senses and deserving of proscription. Although Bill C-36 proclaims to promote dignity and equality rights, it prioritizes the interests of communities over those of sex workers. In the result, this new law will revoke sex workers’ social and political citizenship and thwart their personal security. (shrink)

In this article, I argue that lawmakers must abandon their previous reluctance to engage with questions of personal identity (PI). While frequently seen as an esoteric subject, of limited interest outside of academic philosophy departments, I attempt to show that, in fact, assumptions about PI—and its durability in the face of certain psychological or genetic changes—underpin many current legal rules. This is most perhaps obviously exemplified with regard to reproductive technologies. Yet the Parfitian challenge to identify a victim of ‘bad’ (...) reproductive choices has been largely overlooked in framing legislative responses to such technologies. Furthermore, I argue, it is not only with regard to emerging technologies that questionable assumptions about PI play a role; legal responses to questions about the attribution of criminal responsibility, and about the treatment of demented or brain-injured people, necessitate a frank engagement with such questions. It may be, however, that a multi-faceted approach to PI, which takes account of genetic, psychological and social factors—will prove a better fit for the myriad needs of the legal system than any sort of ‘unified theory of identity’. (shrink)

SIR, --- Your inaugural address is probably as honest, sensible, and consistent a one as that of any president within the last fifty years, or, perhaps, as any since the foundation of the government. If, therefore, it is false, absurd, self-contradictory, and ridiculous, it is not (as I think) because you are personally less honest, sensible, or consistent than your predecessors, but because the government itself --- according to your own description of it, and according to the practical administration of (...) it for nearly a hundred years --- is an utterly and palpably false, absurd, and criminal one. Such praises as you bestow upon it are, therefore, necessarily false, absurd, and ridiculous. Thus you describe it as "a government pledged to do equal and exact justice to all men." Did you stop to think what that means? Evidently you did not; for nearly, or quite, all the rest of your address is in direct contradiction to it. Let me then remind you that justice is an immutable, natural principle; and not anything that can be made, unmade, or altered by any human power. It is also a subject of science, and is to be learned, like mathematics, or any other science. It does not derive its authority from the commands, will, pleasure, or discretion of any possible combination of men, whether calling themselves a government, or by any other name. It is also, at all times, and in all places, the supreme law. And being everywhere and always the supreme law, it is necessarily everywhere and always the only law. Lawmakers, as they call themselves, can add nothing to it, nor take anything from it. Therefore all their laws, as they call them, --- that is, all the laws of their own making, --- have no color of authority or obligation. It is a falsehood to call them laws; for there is nothing in them that either creates men's duties or rights, or enlightens them as to their duties or rights. There is consequently nothing binding or obligatory about them. And nobody is bound to take the least notice [*4] of them, unless it be to trample them under foot, as usurpations.. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:The Bad, the Ugly, and the Need for a Position by PsychiatryLloyd A. Wells (bio)Keywordsvice, psychiatric education, psychiatry-law interface, medicalizationSadler’s paper is thought provoking and will resonate with many psychiatrists who deal with the interface of vice and psychiatric syndromes. This interface and the dilemmas it poses are perhaps most discussed by residents, who are dealing with the issue for the first time and who often debate what is (...) “psychiatric” about these cases. Many residents have their own informal systems of classifying vice, often with a divide between the criminal population and those perceived as avoiding work and responsibility. These unofficial classifications are usually judgmental and often pejorative, but the residents rarely get much help from faculty in this area. Indeed, many of the faculty have equally judgmental and pejorative views, which are neither systematized nor subject to systematic analysis.By clarifying the importance of the issue of the vice–mental disorder relationship (VMDR) to psychiatry, Sadler may move this topic to one that receives Socratic discourse in our training programs and serious consideration in the training of psychiatrists rather than an idiosyncratic lumping of these patients into the broad category of “patients I don’t like.”Sadler asks for comments in several categories: historical intractability, goals of psychiatry, taxonomy, implications for the criminal justice system, implications for the law, and ethical/political implications.Issues of historical intractability are long standing. In A Tour of the Whole Island of Great Britain, written in the early eighteenth century, Daniel Defoe (1724–1727) describes many asylums, often with the comment, “as it is a madhouse, so is it also a house of correction.” Some of the great public hospitals of the seventeenth and eighteenth centuries were built at least as much to get antisocial and homeless people off the streets as to provide care for the mentally ill. The moral treatment of France and Great Britain, which added much to the practice of psychiatry, clearly had punitive “treatments” for patients with vice-laden behaviors, and this was very explicit in the American moral model of treatment of the late nineteenth century with its obsessive need to prevent patients from masturbating. In the nineteenth and early twentieth centuries, there was great debate about the inclusion of Pritchard’s “moral insanity”—now sanitized into “personality disorders”—into the psychiatric domain, and Kraepelin referred to this group as “enemies of society.”Sadler next asks us to consider the goals of psychiatry in regard to “a proper VMDR.” He wonders [End Page 43] whether a strict medicalization account can be defended. I think it is clear from a large literature and from clinical experience that it cannot be defended —now. But it may become defensible in this century, which will pose enormous challenges to psychiatry, lawmakers, and the courts (vide infra). A strict moralization model is defended by many in society, including some psychiatrists, but has severe limitations and seems illogical. It is hard to make a case (though juries have done so) that, for example, a very delusional young woman with postpartum psychosis who murders her children because of the belief that far worse things than death will happen to them imminently if they live, fits the moralization approach. The Dahmer case is especially instructive. Although there was enormous “vice” (and perhaps “evil”), it is hard to make a case that a sane man would make temples out of the body parts of victims and would attempt to commune with the dead through them.He wonders whether a “mixed” version of medicalization/moralization can be developed and defended. I would argue for both a mixed approach and a “shared” approach. A middle adolescent with bipolar disorder burned his house to the ground. (Fortunately, he and family members were injured but not killed.) He was wildly manic at the time and set the fire because he wanted to prove that he was immortal and totally impervious to flames. He was delusional, extraordinarily impulsive, and completely without judgment, and it would be extraordinarily difficult to exclude the medical frame in any consideration of the vice involved. The vice, indeed, may be more involved in his decision while euthymic to stop taking... (shrink)

Whether or not intellectual property rights ought, as a matter of political morality, to be protected by the law surely depends on what kinds of interests the various parties have in intellectual content. Although theorists disagree on the limits of morally legitimate lawmaking authority, this much seems obvious: the coercive power of the law should be employed only to protect interests that rise to a certain level of moral importance. We have such a significant interest in not being lied (...) to, for example, that ordinary unilateral lies are morally wrong, but the wrongness of lying does not rise to the level of something the state should protect against by coercive criminal prohibition. Indeed, it would clearly be wrong for the law to coercively restrict behaviors in which no one has any morally significant interests whatsoever. Using the coercive power of the law to restrict freedom is not justified unless the moral benefits of restricting the behavior outweigh the moral costs involved in using force to restrict human autonomy and freedom. (shrink)

Corporate Punishment: A Proposal is an exercise in logic and creative thinking. I shall argue that no good reasons exist for the supposition that corporations have rights independent of the rights and interests of the persons they serve and that the error of treating corporations as though they do have autonomous rights derives from a sloppy argument from analogy. I shall further argue that the analogy of corporations to citizens, though pushed too far by some courts and lawmakers, remains a (...) useful analogy if its logical relations can be cleaned up and clarified. Finally, I shall conclude this essay by employing the refurbished analogy in such a way that it yields a proposal for more effective criminal punishment for corporate wrongdoing. (shrink)

Gideon Yaffe has recently argued that children should be subject to lower standards of criminal liability because, unlike adults, they ought to be disenfranchised. Because of their disenfranchisement, they lack the legal reasons enfranchised adults have to comply with the law. Here I critically consider Yaffe’s argument for such disenfranchisement, which holds that disenfranchisement balances children’s interest in self-government with adults’ interest in having an equal say over lawmaking. I argue that Yaffe does not succeed in showing that (...) these two values need to be balanced, nor that disenfranchising children is a justifiable method of achieving this balance. In my conclusion, I sketch an alternative contractualist approach to disenfranchising children that, like Yaffe’s, appeals to the implications that enfranchisement has for political relations among citizens, but unlike Yaffe’s, rests on empirical claims about the influence of parents on children’s voting patterns rather than on a priori claims regarding who has a rightful say over lawmaking. (shrink)

This article is a libertarian critique of incest laws. On the basis of the libertarian “harm principle”, one must ask what exactly is the harm that incest brings forth. Traditionally, anthropologists have tried to rationalize the incest taboo in various theories, and lawmakers have used these principles as grounds for the criminalization of incest. These principles are the preservation of family structure, the enhancement of alliances and the avoidance of genetic risks. While I acknowledge that these rationalizations are plausible, I (...) argue that they are still not sufficient grounds for the preservation of incest laws, and consequently, there is an ethical need to reform them. (shrink)

In this paper, I argue that a constitutionalized Harm Principle could ensure that people are not jailed unless they deserve it. I do not aim to outline every possible type of bad consequence beyond harm that might be sufficiently serious to justify criminalization. Instead, I focus on criminalization that is backed up with jail terms and I argue that wrongful harm to others provides the only moral and constitutional justification for sending people to jail. Imprisonment harms the prisoner, so she (...) should not be imprisoned unless she has caused proportionate harm to others. I argue that the sufficient conditions for sending an offender to jail are: (1) that the offender's actions have (or risk) bad consequences that are sufficiently harmful to make her commensurately deserving of penal detention; and (2) that the offender culpably (that is, with a state of mind somewhere along the intentional/reckless/gross negligence continuum) chose (aimed or attempted) to bring about those bad consequences or did so with reckless indifference. The lawmaker would need to demonstrate from the ex ante perspective that proposed offenses carrying jail sentences are a proportionate and fair way of dealing with the wrongs involved. Because jail (including short sentences of a few days) involves hard treatment (seriously harmful consequences for the prisoner) harm to others would be the only bad consequence of sufficient weight to justify a jail sentence. Jailing people for wrongful behavior that has harmless consequences would be an unjust and disproportionate response. In terms of understanding imprisonment (a physical deprivation of liberty) in the United States, it is better to refer to the Eighth Amendment of the Constitution than to the Due Process Clause. The Eighth Amendment, if read morally, could be invoked to strike down laws that carry prison sentences for wrongs that do not result in harm to others. This is because harming a person by subjecting her to the hard treatment that is involved in serving a jail term would be a disproportionate response unless the wrongdoer inflicted equivalent harm on others. I argue, that the Eighth Amendment should be interpreted in a way that accords with its overall moral aim or purpose. The Amendment's overall moral aim is to ensure that the state does not inflict unjust, oppressive, or disproportional punishments on its citizens. (shrink)

The philosophy of criminalisation has been a neglected topic for some time now. A considerable amount of modern criminal justice literature is dedicated to preventing crime and punishing crime, but precious little attention is dedicated to the preliminary question: what should be a crime? Over the last decade, five editors and dozens of authors published a four-part series of edited essays in an attempt to answer that question. The present article is a hybrid of sorts: in one sense, it (...) is a review of the essays in that series; but in another sense, this article also makes its own unique contribution by answering two key questions. First, what is criminalisation? And second, how should lawmakers decide what to criminalise? Most importantly, this article suggests a new criminalisation decision-making process in order to ensure the criminal law is a justifiable framework of prohibitions and sanctions. (shrink)

This is a reprint of a book first published by Little, Brown in 1978. George Fletcher is working on a new edition, which will be published by Oxford in three volumes, the first of which is scheduled to appear in January of 2001. Rethinking Criminal Law is still perhaps the most influential and often cited theoretical work on American criminal law. This reprint will keep this classic work available until the new edition can be published.

Laws form counterfactually stable sets -- Natural necessity -- Three payoffs of my account -- A world of subjunctives.

This book explores the constitutional, legally binding dimension to legisprudence in the light of the German Federal Constitutional Court's approach to rational lawmaking. Over the last decades this court has been remarkably active in applying legisprudential criteria and standards when reviewing parliamentary laws. It has thus supplied observers with a unique material to analyse the lawmakers' duty to legislate rationally, and to assess the virtues and drawbacks of this strand of judicial control in a constitutional democracy. By bringing together (...) legislation experts and public law scholars to elaborate on 'legisprudence under review', this contributed volume aspires to shed light on the constitutionalisation of rational lawmaking as a controversial trend gaining ground in both national and international jurisdictions. The book is divided into five parts. Part I frames the two key issues pervading the whole collection: the intricate relationship between judicial review and democracy, on the one hand, and the possibility of improving and rationalizing the task of legislation under the current circumstances of politics, on the other. Part II provides an overview of the judicial review of rational lawmaking, laying special emphasis on the duty of legislative justification imposed on lawmakers by the German Constitutional Court. Part III is devoted to the review of the systemic rationality of legislation, in particular to the requirements of legislative consistence and coherence as developed by this court. Contributions in Part IV revolve around the judicial scrutiny of the socio-empirical elements of rational lawmaking, with the control of legislative facts and impacts and the problem of symbolic laws being the central topics. Finally, Part V draws on the German case law to discuss the links between rational lawmaking, balancing and proportionality, and the interdependence between process review and substantive review of legislation. (shrink)

John Foster presents a clear and powerful discussion of a range of topics relating to our understanding of the universe: induction, laws of nature, and the existence of God. He begins by developing a solution to the problem of induction - a solution whose key idea is that the regularities in the workings of nature that have held in our experience hitherto are to be explained by appeal to the controlling influence of laws, as forms of natural necessity. His second (...) line of argument focuses on the issue of what we should take such necessitational laws to be, and whether we can even make sense of them at all. Having considered and rejected various alternatives, Foster puts forward his own proposal: the obtaining of a law consists in the causal imposing of a regularity on the universe as a regularity. With this causal account of laws in place, he is now equipped to offer an argument for theism. His claim is that natural regularities call for explanation, and that, whatever explanatory role we may initially assign to laws, the only plausible ultimate explanation is in terms of the agency of God. Finally, he argues that, once we accept the existence of God, we need to think of him as creating the universe by a method which imposes regularities on it in the relevant law-yielding way. In this new perspective, the original nomological-explanatory solution to the problem of induction becomes a theological-explanatory solution.The Divine Lawmaker is bold and original in its approach, and rich in argument. The issues on which it focuses are among the most important in the whole epistemological and metaphysical spectrum. (shrink)

The willful ignorance doctrine says defendants should sometimes be treated as if they know what they don't. This book provides a careful defense of this method of imputing mental states. Though the doctrine is only partly justified and requires reform, it also demonstrates that the criminal law needs more legal fictions of this kind. The resulting theory of when and why the criminal law can pretend we know what we don't has far-reaching implications for legal practice and reveals (...) a pressing need for change. (shrink)

This chapter examines the restrictions on justification of punishment that result from the claim that human beings lack freedom of the will. The variety of free will at issue is the control in action required for the agent to basically deserve to be blamed or punished. If we lack such free will, the classical retributive justification is undermined. Furthermore, if we lack such free will, one justification for using criminals as means for the purpose of general deterrence is also threatened. (...) Since even if we lack free will, we yet retain the right to harm in self-defense, special deterrence that invokes such a right, and the attendant general deterrence, are in the clear. Finally, ways in which additional general deterrence absent free will might be justified are explored. (shrink)

Should we use the same standard of proof to adjudicate guilt for murder and petty theft? Why not tailor the standard of proof to the crime? These relatively neglected questions cut to the heart of central issues in the philosophy of law. This paper scrutinises whether we ought to use the same standard for all criminal cases, in contrast with a flexible approach that uses different standards for different crimes. I reject consequentialist arguments for a radically flexible standard of (...) proof, instead defending a modestly flexible approach on non-consequentialist grounds. The system I defend is one on which we should impose a higher standard of proof for crimes that attract more severe punishments. This proposal, although apparently revisionary, accords with a plausible theory concerning the epistemology of legal judgments and the role they play in society. (shrink)

The chapter concerns the relationship between the justification of criminal law and punishment and the justification of the state. It briefly surveys the debate between retributivists and consequentialists and argues that both are inappropriate when it comes to state punishment. It next turns to arguments by Vincent Chiao, Malcolm Thorburn, and Antony Duff that locate criminal law and punishment in public law. The final parts of the chapter develop an account of criminal law and punishment as best (...) understood as constitutive elements of a liberal political community necessary to ensure stability, to reinforce the commitment of the members to the rules as regulative of their plans of life, and to communicate and censure the offender for the wrong that has been done. (shrink)

John Foster presents a clear and powerful discussion of a range of topics relating to our understanding of the universe: induction, laws of nature, and the existence of God. He begins by developing a solution to the problem of induction - a solution whose key idea is that the regularities in the workings of nature that have held in our experience hitherto are to be explained by appeal to the controlling influence of laws, as forms of natural necessity. His second (...) line of argument focuses on the issue of what we should take such necessitational laws to be, and whether we can even make sense of them at all. Having considered and rejected various alternatives, Foster puts forward his own proposal: the obtaining of a law consists in the causal imposing of a regularity on the universe as a regularity. With this causal account of laws in place, he is now equipped to offer an argument for theism. His claim is that natural regularities call for explanation, and that, whatever explanatory role we may initially assign to laws, the only plausible ultimate explanation is in terms of the agency of God. Finally, he argues that, once we accept the existence of God, we need to think of him as creating the universe by a method which imposes regularities on it in the relevant law-yielding way. In this new perspective, the original nomological-explanatory solution to the problem of induction becomes a theological-explanatory solution. The Divine Lawmaker is bold and original in its approach, and rich in argument. The issues on which it focuses are among the most important in the whole epistemological and metaphysical spectrum. (shrink)

Criminal offenders are sometimes required, by the institutions of criminal justice, to undergo medical interventions intended to promote rehabilitation. Ethical debate regarding this practice has largely proceeded on the assumption that medical interventions may only permissibly be administered to criminal offenders with their consent. In this article I challenge this assumption by suggesting that committing a crime might render one morally liable to certain forms of medical intervention. I then consider whether it is possible to respond persuasively (...) to this challenge by invoking the right to bodily integrity. I argue that it is not. (shrink)

The purpose of this paper is to show how interdisciplinary studies between the fields of law and literature can contribute to the debate on legal interpretation, and to the role of what legal operators actually do when deciding constitutional issues. First, we will review one of the possible meeting points between law and literature - i. e. law as literature - and we will examine Roland Barthes’ semiological proposal, specifically his theory about “The Death of the Author”; from there on, (...) we will show how the ideas and concepts he coined constitute one of the tools that best describe the mechanics of the current constitutional interpretation in some legal systems. This will lead to what we will call “The Death of the Lawmaker”. (shrink)

Criminal law as public law -- Criminal law as public law -- Criminal law as public law -- Mass incarceration and the theory of punishment -- Reasons to criminalize -- Formalism and pragmatism in criminal procedure -- Responsibility without resentment.

Why is American punishment so cruel? While in continental Europe great efforts are made to guarantee that prisoners are treated humanely, in America sentences have gotten longer and rehabilitation programs have fallen by the wayside. Western Europe attempts to prepare its criminals for life after prison, whereas many American prisons today leave their inhabitants reduced and debased. In the last quarter of a century, Europe has worked to ensure that the baser human inclination toward vengeance is not reflected by state (...) policy, yet America has shown a systemic drive toward ever increasing levels of harshness in its criminal policies. Why is America so short on mercy? In this deeply researched, comparative work, James Q. Whitman reaches back to the 17th and 18th centuries to trace how and why American and European practices came to diverge. Eschewing the usual historical imprisonment narratives, Whitman focuses instead on intriguing differences in the development of punishment in the age of Western democracy. European traditions of social hierarchy and state power, so consciously rejected by the American colonies, nevertheless supported a more merciful and dignified treatment of offenders. The hierarchical class system on the continent kept alive a tradition of less-degrading "high-status" punishments that eventually became applied across the board in Europe. The distinctly American, draconian regime, on the other hand, grows, Whitman argues, out of America's longstanding distrust of state power and its peculiar, broad-brush sense of egalitarianism. Low-status punishments were evenly meted out to all offenders, regardless of class or standing. America's unrelentingly harsh treatment of trangressors--this "equal opportunity degradation"-- is, in a very real sense, the dark side of the nation's much vaunted individualism. A sobering look at the growing rift between the United States and Europe, Harsh Justice exposes the deep cultural roots of America's degrading punishment practices. (shrink)

The wrongness of rape -- Rationality and the rule of law in offences against the person -- Complicity and causality -- In defence of defences -- Justifications and reasons -- The gist of excuses -- Fletcher on offences and defences -- Provocation and pluralism -- The mark of responsibility -- The functions and justifications of criminal law and punishment -- Crime : in proportion and in perspective -- Reply to critics.

This paper discusses the criminalization of scientific misconduct, as discussed and defended in the bioethics literature. In doing so it argues against the claim that fabrication, falsification and plagiarism (FFP) together identify the most serious forms of misconduct, which hence ought to be criminalized, whereas other forms of misconduct should not. Drawing the line strictly at FFP is problematic both in terms of what is included and what is excluded. It is also argued that the criminalization of scientific misconduct, despite (...) its anticipated benefits, is at risk of giving the false impression that dubious practices falling outside the legal regulation “do not count”. Some doubts are also raised concerning whether criminalization of the most serious forms of misconduct will lower the burdens for universities or successfully increase research integrity. Rather, with or without criminalization, other measures must be taken and are probably more important in order to foster a more healthy research environment. (shrink)

Through a detailed analysis that draws on work across philosophy, the law, and social psychology, this book shows that, from the very beginning of the American criminal legal process in interrogation rooms to its final stages in front of parole boards, testimony is extracted from individuals through processes that are coercive, manipulative, or deceptive. This testimony is then unreasonably regarded as representing the testifiers’ truest or most reliable selves. With chapters ranging from false confessions and eyewitness misidentifications to recantations (...) from victims of sexual violence and expressions of remorse from innocent defendants at sentencing hearings, it is argued that there is a distinctive epistemic wrong being perpetrated against suspects, defendants, witnesses, and victims. This wrong involves brute State power targeting the epistemic agency of its citizens, extracting false testimony that is often life-shattering, and rendering the victims in question complicit in their own undoing. It is concluded that it is only through understanding what it means to respect the epistemic agency of each participant in the criminal legal system that we can truly grasp what justice demands and, in so doing, to reimagine what is possible. (shrink)

This book reflects the belief that a careful study of the Law of Attempts should be both interesting in itself, as well as being a productive route into a number of larger and deeper issues in criminal law theory and in the philosophy of action. By identifying the legal doctrines which courts and legislatures have developed or adopted, the author goes on to ask whether and how they can be rationalized or rendered persuasive. Such an approach involves paying detailed (...) attention to cases. The book is also unusual in that it grapples with English, Scots and US law, showing great breadth of research as well as philosophical sophistication. This is a work which is likely to become a seminal study and a major contribution to the study of law and legal philosophy. (shrink)

This Major Reference series brings together a wide range of key international articles in law and legal theory. Many of these essays are not readily accessible, and their presentation in these volumes will provide a vital new resource for both research and teaching. Each volume is edited by leading international authorities who explain the significance and context of articles in an informative and complete introduction.

Since the 90’s, neurolaw is on the rise. At the heart of heated debates lies the recurrent theme of a neuro-revolution of criminal responsibility. However, caution should be observed: the alleged foundations of criminal responsibility (amongst which free will) are often inaccurate and the relative imperviousness of its real foundations to scientific facts often underestimated. Neuroscientific findings may impact on social institutions, but only insofar as they also engage in a political justification of the changes being called for, (...) convince populations, and take into consideration the ensuing consequences. Moreover, the many limits of neuroscientific tools call for increased vigilance when, if ever, using neuroscientific evidence in a courtroom. In this article, we aim at setting the basis for future sound debates on the contribution of neuroscience to criminal law, and in particular to the assessment of criminal responsibility. As such, we provide analytical tools to grasp the political and normative nature of criminal responsibility and review the current or projected use of neuroscience in the law, all the while bearing in mind the highly-publicized question: can neuroscience revolutionize criminal responsibility? Answering this question implicitly requires answering a second question: should neuroscience revolutionize the institution of criminal responsibility? Answering both, in turn, requires drawing the line between science and normativity, revolution and dialogue, fantasies and legitimate hopes. (shrink)

According to a number of influential views in penal theory, 1 one of the primary goals of the criminal justice system is to rehabilitate offenders. Rehabilitativemeasures are commonly included as a part of a criminal sentence. For example, in some jurisdictions judges may order violent offenders to attend anger management classes or to undergo cognitive behavioural therapy as a part of their sentences. In a limited number of cases, neurointerventions — interventions that exert a direct biological effect on (...) the brain — have been used as aids to rehabilitation, typically being imposed as part of criminal sentences, separate treatment orders, or conditions of parole. Examples of such interventions include medications intended to attenuate addictive desires in substance-abusing offenders and agents intended to suppress libido in sex offenders.This chapter reviews some of the ethical issues raised by the use of neurointerventions as aids to rehabilitation. (shrink)

These four volumes address the question of the kinds of conduct may the state make criminal without infringing on the moral autonomy of individual citizens.