Drawing on Brown and Fraser’s (in: Giles, Scherer (eds) Social markers in speech, Cambridge University Press, Cambridge, pp 33–62, 1979) framework for the analysis of communicative situations and Fuentes Rodríguez’s (Lingüística pragmática y Análisis del discurso, Arco Libros, Madrid, 2000; in Estudios de Lingüística: Investigaciones lingüísticas en el siglo XXI, 2009. https://doi.org/10.14198/ELUA2009.Anexo3.04 ) model of pragmatic analysis, this paper examines three home-made recordings featuring some of the members of the terrorist cell responsible for the 2017 vehicle-ramming attacks in Barcelona and (...) Cambrils weighted as evidence during the trial held between November 2020 and May 2021 in the Spanish National High Court. The aim of this qualitative analysis is to test whether the linguistic evidence available supports the allegation that the participation in these recordings by one of the accused, Mohamed Houli Chemlal, had been planned by his interlocutors. Results show, first, that the exchanges analyzed present features indicative of both spontaneity and (limited) planification. Second, that Houli makes key contributions to the unfolding of the interactions shown in the recordings and that he does so in a cooperative and apparently relaxed manner, which could at best provide only partial support to his allegations. It is claimed that forensic linguistic analysis can generate valuable insights within terrorism-related legal proceedings. (shrink)

The question of excusing in law has been the subject of different philosophical theories of responsibility. These theories attempt to shed light on the nature and function of legal excuses and to justify their role in the criminal justice system. This paper examines the issue of excusing in law from two theoretical standpoints: the character theory and the choice theory of responsibility. The two theories differ on the kinds of causes of action they each find to provide the basis (...) for holding people responsible. The character theory focuses on character, the choice theory on choice and the capacity to choose. Following a brief introduction in which the fundamental distinction between justification and excuse is outlined, the character theory of responsibility is explained with special attention being paid to the work of George Fletcher, which has made a significant impact on the field of criminal law philosophy in recent years. Then follows a critical discussion of the choice theory as elaborated by H.L.A. Hart, one of the most influential legal theorists of our times. The paper concludes that the character theory of responsibility, by drawing attention to what lies behind and motivates actual choices, offers a better basis for interpreting the moral significance of human actions and for explaining our actual blaming judgements regarding those actions. (shrink)

This work provides, for the first time, a unified account of the theory of action presupposed by both British and American criminal law and its underlying morality. It defends the view that human actions are volitionally caused body movements. This theory illuminates three major problems in drafting and implementing criminal law--what the voluntary act requirement does and should require, what complex descriptions of actions prohibited by criminal codes both do and should require, and when the two actions (...) are the "same" for purposes of assessing whether multiple prosecutions and multiple punishments are warranted. The book contributes to the development of a coherent theory of action in philosophy. It provides a grounding in three of the most basic elements of criminal liability for legislators, judges, and the lawyers who argue to them. (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)

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)

The paper considers the proper method for theorizing about criminal jurisdiction. It challenges a received understanding of how to substantiate the right to punish, and articulates an alternative account of how that theoretical task is properly conducted. The received view says that a special relationship is the ground of a tribunal’s authority to prosecute and, hence, that a normative theory of that authority is faced with identifying a distinctive relation. The alternative account locates prosecutorial standing on an institution’s capacity (...) to address the basic reasons generating criminal liability. This reframes the normative issues at stake, and has the result that various, perhaps quite heterogeneous, considerations can substantiate penal authority. It also eliminates the existence of a special relation as a necessary condition for legitimate criminal accountability. The argument proceeds by offering an analysis and account of universal jurisdiction. Not only does the alternative elegantly perform where the received view struggles, it can accommodate much of what motivates the pursuit of relational ties in existing efforts to vindicate jurisdictional conclusions. (shrink)

This article focuses on the problem of criminal liability for unlawful engagement in economic activities, analyses the emergence and development of this norm in criminal law and the ways of its optimal explanation. Special attention is paid to the problem of identification of illegality of activities, based on specific tax and economic regulation. The study concludes that criminal liability must be limited to a violation of fundamental requirements for the legality of business, and does not (...) include particular abuses occurring in legal business. The author also deals with the criteria of delimitation of criminal and administrative liability for unlawful engagement in economic activities. Under Article 202(1) of the Criminal Code of the Republic of Lithuania, application of criminal liability is limited by two alternative conditions: either a person illegally undertakes activity in entrepreneurial way or on a large scale. According to the paper, the above-mentioned regulation lacks clarity and leads to the risk of unfounded prosecutions. The author gives practical examples, where on the basis of inexplicable criterion of an entrepreneurial way, criminal charges are filed in respect of petty economic activities. Such practice is incompatible with the purposes and principles of criminal law. The paper proposes to delete the criterion of an entrepreneurial way from the definition, leaving the possibility of criminal liability only in case of large scale illegal economic activity. The article also substantiates the conclusion that prohibited business activities provided for in Article 202(2) of the Criminal Code actually defies logical explanation and should be removed from the regulation. At the end of the article, the author offers a sample of optimal legal wording of unlawful engagement in economic activities in criminal law. (shrink)

In 2021, there was a significant amendment to the legislation on medical experimentation. In particular, Chapter 4 of the Law of December 5, 1996 on the Profession of Physician and Dentist (Journal of Laws 2023, item 1516) was amended, in which the prerequisites of legally relevant consent given by the participant in the experiment or by other entities that express a position on their behalf were specified. In addition, procedures related to the opinion of the research project by the so-called (...) bioethics committee were described. Its members were obliged to maintain confidentiality with regard to information obtained in connection with the fulfilled function. These norms became protected by criminal sanctions, set forth in the amended Article 58 of the law. New generic types of criminal acts were introduced, primarily aimed at protecting the participant's right to self-determination, the voluntariness of participation in the experiment, and the confidentiality of data submitted by the experimenters in their proposals to bioethics committees. These norms fill in the gaps that have existed so far in the criminal law protection of these values. The article systematically discusses the generic types of criminal acts that have been penalized in Article 58 (4) to (6) of the referenced law. Their object of protection, object side, subject, subject side, punishability and potential confluence with other regulations are presented. The historical-dogmatic justification for the introduction of these regulations is also shown. (shrink)

This article presents the conception of negligent account management, analyses the rules of the criminal act that govern criminal liability for negligent account management, by focussing on the form of guilt and the problem of its content. The plenary session’s conclusion that the two offences – failure to administer bookkeeping and failure to protect the bookkeeping documents – can be committed both intentionally and negligently is disputed in this article. The adoption of the new Criminal Code (...) in 2000, setting the form of guilt and its content in criminal cases for negligent account management, posed no significant problems – the court practice and legal literature followed the attitude that this crime could be committed only negligently. According to Article 16(4) of the Criminal Code 2000, a person is punished for negligent commission of a crime or a misdemeanour only in individual cases stipulated in the Special Part of the Criminal Code. The problem was that no “individual case” was foreseen in Article 223 of the Criminal Code that imposed liability for negligent bookkeeping. This created preconditions for deviating from pre-existing case-law under which this crime could be qualified as negligent. Only in 2009 the Criminal Division of the Lithuanian Supreme Court concluded in its plenary session that Article 223 of the Criminal Code provided liability for criminal record-keeping and accounting only if committed negligently as a form of guilt, and other activities pursuant to this Article might be committed intentionally and recklessly. The plenary session identified a loophole of criminal law and created preconditions for the formation of uniform court practice. Only the legislator can remove the loophole of criminal law identified by the Supreme Court of Lithuania. The author states that all of the acts named in Article 223 of the Criminal Code can be committed negligently and suggests applying the rule contained in Article 16(4) of the Criminal Code to Article 223 of the Criminal Code. All of these findings are based on historical, grammatical and logical interpretation of the “neglect” concept and the analysis of Articles 222 and 223 of the Criminal Code. (shrink)

The responsible corporate officer doctrine is, as a formal matter, an instance of strict criminal liability: the government need not prove the defendant’s mens rea in order to obtain a conviction, and the defendant may not escape conviction by proving lack of mens rea. Formal strict liability is sometimes consistent with retributive principles, especially when the strict liability pertains to the grading of an offense. But is strict liability consistent with retributive principles when it pertains, (...) not to grading, but to whether the defendant has crossed the threshold from noncriminal to criminal conduct? In this essay, I review the two most plausible arguments supporting an affirmative answer in the context of the RCO doctrine. First, perhaps this doctrine reflects a rule-like form of negligence, akin to a rule that prohibits selling alcohol to a minor. Second, perhaps this doctrine expresses a duty to use extraordinary care to prevent a harm. Neither argument is persuasive. The first argument, although valid in some circumstances, fails to explain and justify the RCO doctrine. The second argument, a duty to use extraordinary care, is also inadequate. If “extraordinary care” simply means a flexibly applied negligence standard that considers the burdens and benefits of taking a precaution, it is problematic in premising criminal liability on ordinary negligence. If instead it refers to a higher duty or standard of care, it has many possible forms, such as requiring only a very slight deviation from a permissible or justifiable standard of conduct, placing a “thumb” on the scale of the Learned Hand test, identifying an epistemic standard more demanding than a reasonable person test, or recognizing a standard that is insensitive to individual capacities. However, some of these variations present a gratuitous or incoherent understanding of “negligence,” and none of them sufficiently explain and justify the RCO doctrine. (shrink)

The article attempts to answer the following questions: What criminal law, if any, is applied in outer space when a crime is committed there? How will the issues of demarcation of criminal jurisdiction be resolved? Who and how will investigate such crimes? Which international or national institution will decide the issue of criminal prosecution and application of sanctions for crimes in space? Basing on the analysis of the sources of space and international law, it was concluded that (...) today there is no detailed procedure for investigating and bringing to criminal responsibility for committing a crime in space. There is also no international legal act that would establish a list of space criminal offenses. To solve existing problems, it is suggested to adopt the Convention on Criminal Liability for Space Crimes and to create a Space Criminal Statute (code). The article also claims that the creation of a World Space Union on regulating the commercial space activities will help in solving many issues in the field of research. (shrink)

The modern Lithuanian legal doctrine recognises that criminal liability is a last resort (ultima ratio) protecting the society from various law violations. This idea has got deep roots in criminology and is obviously based on the position of rational approach towards the state criminal policy. However, it is not clear whether it is of obligatory legal status to the legislature and the courts. This article attempts to present the idea of a last resort as a concept based (...) on the constitutional principles of the rule of law, justice, proportionality and rationality in the legislation and case law. The author concludes that the main precursors of the ultima ratio principle are the German legal doctrine of protection of legal goods (Rechtsgüterschutz) and Harm principle respected in the common law tradition, as well as the need for protection of human rights in the democratic world. These concepts raise the duty of the legislator to justify the act of criminalisation by legitimate purpose and to comply with certain constitutional limits of application of criminal law. The idea of criminal liability as a last resort is recognised both in the jurisprudence of the Constitutional Court (obiter dictum) and in the practice of the Supreme Court of Lithuania reasoning particular decisions in criminal cases, especially delimiting criminal and other types of legal liability. The author concludes that the fact of discrepancy of criminal law to ultima ratio test can be one of the arguments in support of its objection to the Constitution and even the European Convention on Human Rights and Fundamental Freedoms. At the same time, the author of the article has found that many norms of the Criminal Code are in conflict with the idea of a last resort. (shrink)

The act of “embezzlement” provided for in Article 183 of the Criminal Code of the Republic of Lithuania gives rise to a number of both theoretical and practical problems. First of all, various authors do not agree whether embezzlement constitutes a substantive or formal element. In the author’s opinion, embezzlement is deemed complete when possession of the property of others is taken illegally and there is a real possibility, perceived by the perpetrator, to manage it, to use it or (...) to dispose of it or misappropriation is made of a property right, giving the perpetrator a possibility to receive other persons’ property or property benefit immediately or in the future, to treat the property of others as one’s own. That is, when a real possibility, perceived by the perpetrator, to treat the property of others as one’s own arises but not when the damage is caused. In this case, particular importance is adduced to the condition that the perpetrator must clearly perceive his/her possibility to treat the property of others as one’s own. In case such a possibility has not been perceived by the perpetrator, we cannot state that embezzlement is complete. The moment of completeness and the fact that in practice there may be cases where no real damage is caused to a legal entity when the perpetrator embezzles property of the former (see the example in footnote 15), show that the criminal act provided for in Article 183 of the Criminal Code contains a formal element. When evaluating practical problems, the article overviews two rulings of the Supreme Court of Lithuania that are of particular importance for the formation of the case-law. Before the ruling of the Supreme Court of Lithuania of 8 May 2012, this court used to formulate somewhat erroneous case-law in examining cases concerning accusations raised on the basis of Article 183 of the Criminal Code. In cases where the head (shareholder) of a company was accused of embezzlement and used all the “cashed” funds of the company only for the interests and benefit of the company, the court used to evaluate the factual circumstances of the case not as indicative of the fault of the defendant, but only as indicative of the purpose of his/her act. Even if it was determined that the perpetrator did not perceive the real possibility to treat the company’s property as his/her own and always used to regard the property which came to his/her disposal as the company’s property, the court used to qualify the perpetrator’s act as embezzlement, by reasoning that the purpose of the perpetrator’s act was not a circumstance relevant for such qualification. It can be stated that in such a manner the court failed to distinguish between the concept of purpose and the concept of fault, failed to evaluate the features of the subjective part individually, and assessed them in their entirety. Due to such a mistake, the court created an impression that the concepts of fault and purpose in the case were confused. By its ruling of 8 May 2012 the Supreme Court of Lithuania corrected those mistakes, however, its instruction to investigate whether “cashed” funds were not used “for personal needs” and whether the company suffered damage introduced a confusion into the investigation of cases of this type and their examination in court, as the concept of “personal needs” was not absolutely clear, whereas the fact of suffering damage was not necessary in order to qualify an act under Article 183 of the Criminal Code. In the author’s opinion, the Supreme Court of Lithuania should pronounce clearly that the cases where the head (shareholder) of the company has not perceived the real possibility to treat the other person’s property as his/her own will not be regarded as property embezzlement and there will be no deliberation in the person’s act. The absence of such perception would be confirmed by the fact that the perpetrator has used absolutely all “cashed” money of the legal entity only for the interest and benefit of the company. (shrink)

While implementing Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third country nationals (hereinafter referred to as ‘Directive’), Lithuania supplemented the Lithuanian Criminal Code with an additional Article 292-1, entitled “Labour of illegally staying third country nationals in the Republic of Lithuania”, which came into force on 6 January 2012. The author of this article aims to find out whether the (...) main goals and objectives of the Directive regarding criminal liability of the employer have been fully transposed into national law, and by using various scientific methods and the objectives of the Directive, to reveal the objective and subjective attributes of Article 292-1 of the Criminal Code. The second aim is to discuss the criteria distinguishing criminal liability from administrative liability enshrined in Article 41-3 of the Lithuanian Code of Administrative Offences, in particular that that article was not changed at the time of establishing criminal liability. The detailed scientific analysis revealed that Lithuania has essentially transposed all the basic requirements and obligations of the Directive, even though it was somewhat late (the Member States were obliged to implement the Directive by 20 July 2011, and Article 292-1 has come into force on 6 January 2012, while the Law Prohibiting Illegal Work has not yet been enacted). In addition, only four of the five criminal offences enumerated in Article 9 of the Directive have been fully implemented. The Lithuanian legislators have not established criminal liability for an infringement committed by employer using work or services of an illegally staying third country national, with the knowledge that he or she is a victim of trafficking in human beings. This infringement is partially criminalised in Articles 147-1 and 147-2 of the Criminal Code of the Republic of Lithuania, but in order to punish the employer one needs either to establish one of the alternative means by which the will of the third country national has been affected (e.g. coercion, force or threat, deceit or fraud, abuse of authority or abuse of a vulnerable position and etc.), which is not required by the Directive and, in the author’s opinion, makes practical application of criminal liability in this respect rather difficult. Another problem related to the implementation of the Directive is that we still do not have the respective Law and no systemic approach exists, while in the Criminal Code none of the terms used in Article 292-1 are defined and the law enforcement authorities might encounter practical difficulties in applying that Article, in particular considering that some of the definitions could be found only in the Directive itself. Possible difficulties could arise while deciding on whether criminal or administrative liability should arise in cases of continuous or persistently repeated infringements, because in the Criminal Code this feature is defined as “for business purposes”, which is rather subjective and should be established in every single case after thorough evaluation of factual data. (shrink)

In this contribution we will explore some of the implications of the vision of Ambient Intelligence (AmI) for law and legal philosophy. AmI creates an environment that monitors and anticipates human behaviour with the aim of customised adaptation of the environment to a person’s inferred preferences. Such an environment depends on distributed human and non-human intelligence that raises a host of unsettling questions around causality, subjectivity, agency and (criminal) liability. After discussing the vision of AmI we will present (...) relevant research in the field of philosophy of technology, inspired by the post-phenomenological position taken by Don Ihde and the constructivist realism of Bruno Latour. We will posit the need to conceptualise technological normativity in comparison with legal normativity, claiming that this is necessary to develop democratic accountability for the implications of emerging technologies like AmI. Lastly we will investigate to what extent technological devices and infrastructures can and should be used to achieve compliance with the criminal law, and we will discuss some of the implications of non-human distributed intelligence for criminal liability. (shrink)

Notwithstanding the demands of retributive desert, strict criminal liability is sometimes defensible when the strict liability pertains, not to whether conduct is to be criminalized at all, but to the seriousness of the actor’s crime. Suppose an actor commits an intentional assault or rape, and accidentally brings about a death. Punishing the actor more seriously because the death resulted is sometimes justifiable, even absent proof of his independent culpability as to the death. But what punishment is proportionate (...) for such an actor? Should he be punished as harshly as an intentional or knowing killer? This article offers a framework for analysing these difficult questions. After rejecting a broad forfeiture justification for strict liability in grading, it articulates a more promising set of arguments, premised on the actor’s ‘change of normative position’ by choosing to commit a crime. Three principles of culpability sometimes justify strict liability in grading: holistic culpability, attention to the degree of unjustifiability of the risk, and rough comparability in culpability. Strict liability in grading can be appropriate when the risk of committing the more serious crime (i) is a risk intrinsic to the less serious crime or (ii) is minimally foreseeable. The article also addresses the relevance of moral luck, ie the principle that the fortuitous occurrence of a result or circumstance increases the actor’s just deserts. Even if moral luck is recognized, it cannot fully justify strict liability in grading. (shrink)

A critical discussion of Gideon Yaffe's "guiding commitment" account of attempts, with special reference to attempts in the criminal law.

This article provides a brief introduction to some contemporary challenges found in the intersection of bioethics and international criminal law involving genetic privacy, organ trafficking, genetic engineering, and cloning. These challenges push us to re-evaluate the question of whether the international criminal law should hold corporations criminally liable. I argue that a minimalist and Strawsonian conception of corporate responsibility could be useful for deterring the wrongs outlined in first few sections and in answering compelling objections to corporate (...) class='Hi'>criminal liability. (shrink)

This Article presents a theory whereby criminal punishments are routinely distributed in proportion to the weight of the evidence mounted against the defendant. According to this theory, the law relaxes the stringent decision threshold in criminal trials—beyond a reasonable doubt—by creating easy-to-prove evidentiary offenses. These offenses, in turn, are associated with less severe sanctions, thus creating a de-facto proportional liability regime. Against that backdrop, the Article examines the legal duty to report criminal activity to the authorities. (...) As the analysis shows, while legal scholars analyzing such duties have focused on the paradigmatic case in which an innocent bystander, friend or family member is unwittingly exposed to information about a crime, in practice these duties are rarely used in such cases. Rather, reporting duties are used to prosecute suspected accomplices whose involvement in the commission of the actual crime is difficult to prove beyond a reasonable doubt. Thus, offenses imposing a reporting duty on criminal activity turn out to be part of the general framework of accomplice liability, and are used to apply less severe sanctions in cases of evidentiary uncertainty. (shrink)

The continuous increase in criminal activities in all countries, namely the offences which undermine the interests of contemporary societies, call for the need to fight them in a more successful manner. In this way, the country through its mechanisms detects the criminal offences, the criminal liability and imposes the meritorious sanction to the perpetrators of such criminal offences, in full compliance with the danger caused by them. However, the court and other parties in the proceedings (...) in any case before the sanction is imposed, are involved in a complicated evidentiary proceedings related to the grounded suspicion that such offence was a criminal offence, the special mitigating and aggravating circumstances, that the person involved was conscious, that he committed the offence intentionally or negligently, his mental state, etc. All these have to be supported by facts through conclusive pieces of evidence. In parallel with the overall development of science and technology, the evidentiary procedure has evolved and it provides a greater possibility to argue our facts. This paper shall make efforts to highlight some of the most important issues related to the evidentiary procedure, such as: What is the evidence? What evidence should be provided in a certain criminal case? What is the importance of the evidence in a criminal matter? What should be the credibility and the evidentiary value of a piece of evidence? The research done in this paper shall apply the analytical method and the paper shall also include the conclusions that were reached as well as the recommendations. (shrink)

The proposed article provides an overview of European and North American states’ legislation, which regulates the procedure for pre-clinical research, clinical trials and state registration of medicinal products, as well as responsibility for its violation, analysis of the problems and prospects of adaptation of the national legislation to European legal space, particularly in the field of criminal and legal regulation of relations in the sphere of pre-clinical trials, clinical trials and state registration of medicine. The emphasis is put on (...) the matter that inclusion of Article 321-2 into the Criminal Code of Ukraine leads to a false concurrence with other provisions of the Code. The author proposes to introduce recent EU legislation (Acquis Communautaire) on legal regulation of clinical trials and circulation of medicine into the law of Ukraine, clarify terminology related to Fundamentals of Ukrainian Legislation on Health Protection and the Special Part of criminal law, introduce criminal liability for legal entities that will provide effective control over negative effects of research centers’ activity. It is suggested to develop legislative proposals to improve the provisions of the Criminal Code of Ukraine, which provide legal protection of relations arising in connection with pre-clinical research, clinical trials and state registration of medicinal products. (shrink)

Adversaries of Moral Luck (AMLs) are at pains to explain why wrongdoers are liable to bear burdens (punishment, compensation etc.) which are related to the harm they cause, because the consequences of what we do are a matter of luck. One attempt to solve this problem suggests that wrongdoers who cause more harm are liable to bear a greater burden not because they are more blameworthy but rather because they get the short straw in a liability lottery (represented by (...) the apparently indeterminate causal process). In this paper I argue that this attempt fails on several grounds. Apart from the fact that it is hard to see how the implementation of liability lotteries can be motivated and the fact that such scheme presupposes a political order (whereas the notion of liability does not seem to presuppose one), detaching liability from the outcomes of a culpable action undermines whichever justifications there were for imposing liability in the first place. Moreover, relying on the determination of the causal process as a good indication of the wrongdoer’s degree of culpability is mistaken, because the luck brought about through the causal process is not necessarily the only element involved in cases of harmful conduct which lies beyond the wrongdoers’ control. (shrink)

In Complicity and the Rwandan Genocide ( 2010b ), Larry May argues that complicity can be the basis for criminal liability if two conditions are met: First, the person’s actions or inactions must contribute to the harm in question, and secondly, the person must know that his actions or inactions risk contributing to this harm. May also states that the threshold for guilt for criminal liability is higher than for moral responsibility. I agree with this latter (...) claim, but I think that it casts doubt on May’s account of criminal liability, particular in so-called performance cases in which low-level participants merely fail to help. This is because it is far from clear that passive non-helpers are morally responsible for their participation in widespread harms. Situationism purports to show that passive bystanders typically are not morally responsible for their role in such harms, because they were behaving reasonably subject to the constraints they faced. In this paper, I assess this claim, and defend it on the basis of O. W. Holmes’ standard of the reasonable person as a guide to judging criminal complicity. Finally, I provide a situationist account of the Rwandan genocide, which focuses on the systemic causes and primary perpetrators of the genocide, rather than low-level participants. (shrink)

Commentators seemingly agree about what negligence is—and how it is contrasted from recklessness. They also appear to concur about whether particular examples (both real and hypothetical) portray negligence. I am less confident about each of these matters. I explore the distinction between recklessness and negligence by examining a type of case that has generated a good deal of critical discussion: those in which a defendant forgets that he has created a substantial and unjustifiable risk of harm. Even in this limited (...) kind of example, no single perspective on blame and liability proves to be defensible. Nonetheless, a discussion of this type of case is helpful because it enables us to appreciate the difficulties in understanding the nature of negligence and the ensuing uncertainty about whether penal liability for negligence is ever warranted. (shrink)

Notwithstanding the demands of retributive desert, strict criminal liability is sometimes defensible when the strict liability pertains, not to whether conduct is to be criminalized at all, but to the seriousness of the actor’s crime. Suppose an actor commits an intentional assault or rape, and accidentally brings about a death. Punishing the actor more seriously because the death resulted is sometimes justifiable, even absent proof of his independent culpability as to the death. But what punishment is proportionate (...) for such an actor? Should he be punished as harshly as an intentional or knowing killer? This article offers a framework for analysing these difficult questions. After rejecting a broad forfeiture justification for strict liability in grading, it articulates a more promising set of arguments, premised on the actor’s ‘change of normative position’ by choosing to commit a crime. Three principles of culpability sometimes justify strict liability in grading: holistic culpability, attention to the degree of unjustifiability of the risk, and rough comparability in culpability. Strict liability in grading can be appropriate when the risk of committing the more serious crime (i) is a risk intrinsic to the less serious crime or (ii) is minimally foreseeable. The article also addresses the relevance of moral luck, ie the principle that the fortuitous occurrence of a result or circumstance increases the actor’s just deserts. Even if moral luck is recognized, it cannot fully justify strict liability in grading. (shrink)

In this long-awaited book, Antony Duff offers a new perspective on the structures of criminal law and criminal liability. His starting point is a distinction between responsibility (understood as answerability) and liability, and a conception of responsibility as relational and practice-based. This focus on responsibility, as a matter of being answerable to those who have the standing to call one to account, throws new light on a range of questions in criminal law theory: on the (...) question of criminalisation, which can now be cast as the question of what we should have to answer for, and to whom, under the threat of criminal conviction and punishment; on questions about the criminal trial, as a process through which defendants are called to answer, and about the conditions (bars to trial) given which a trial would be illegitimate; on questions about the structure of offences, the distinction between offences and defences, and the phenomena of strict liability and strict responsibility; and on questions about the structures of criminal defences. The net result is not a theory of criminal law; but it is an account of the structure of criminal law as an institution through which a liberal polity defines a realm of public wrongdoing, and calls those who perpetrate (or are accused of perpetrating) such wrongs to account. (shrink)

This collection of original essays, by some of the best known contemporary criminal law theorists, tackles a range of issues about the criminal law's 'special part' - the part of the criminal law that defines specific offences. One of its aims is to show the importance, for theory as well as for practice, of focusing on the special part as well as on the general part which usually receives much more theoretical attention. Some of the issues covered (...) concern the proper scope of the criminal law, for example how far should it include offences of possession, or endangerment? If it should punish only wrongful conduct, how can it justly include so-called 'mala prohibita', which are often said to involve conduct that is not wrongful prior to its legal prohibition? Other issues concern the ways in which crimes should be classified. Can we make plausible sense, for instance, of the orthodox distinction between crimes of basic and general intent? Should domestic violence be defined as a distinct offence, distinguished from other kinds of personal violence? Also examined are the ways in which specific offences should be defined, to what extent those definitions should identify distinctive types of wrongs, and the light that such definitional questions throw on the grounds and structures of criminal liability. Such issues are discussed in relation not only to such crimes as murder, rape, theft and other property offences, but also in relation to offences such as bribery, endangerment and possession that have not traditionally been subjects for in depth theoretical analysis. (shrink)

Certainly principles of criminal liability may be understood as rules or norms outlining orders or prohibitions and standing out among other norms with their weight, for legal culture, legal doctrine, etc. In such a classic approach they are norms defining basic rights and obligations in the applicable criminal law. However, is it the only possible and cognitively interesting meaning of the word “principle” in jurisprudence? From the semiotic point of view, they can occur in three forms: special-kind (...) norms, teleological directives, rules which constitute valid performance of conventional activities. In an extra-directival sense these principles may be understood as models-descriptions of shaping the system of criminal law. From a theoretical and practical point of view principles addressed to the legislator are extremely weighty—they can be called rules constructing the system of criminal liability. These all problems are discussed in the article. (shrink)

Recent years have seen mounting challenge to the model of the criminal trial on the grounds it is not cost-effective, not preventive, not necessary, not appropriate, or not effective. These challenges have led to changes in the scope of the criminal law, in criminal procedure, and in the nature and use of criminal trials. These changes include greater use of diversion, of fixed penalties, of summary trials, of hybrid civil–criminal processes, of strict liability, (...) of incentives to plead guilty, and of preventive orders. The paper will assess the implications of these changes for the function of the criminal law, assessing the reasons behind them, and examining whether or not they are to be welcomed. Identifying the larger import of these changes draws attention to the changing relationship between state and citizen as well as changes in the nature of the state itself. These can in turn be attributed to a jostling among the different manifestations of the authoritarian state, the preventive state, and the regulatory state. These changes have profound normative implications for a liberal theory of the criminal law that require its re-articulation and its defence. A modest start may be to insist that where the conduct is criminal and the consequences are punitive the protections of criminal procedure and trial must be upheld. (shrink)

Doug Husak suggests that sometimes an actor should be deemed reckless, and not merely negligent, with respect to the risks that she knowingly created but has forgotten at the moment of action. The validity of this conclusion, he points out, depends crucially on what it means to be aware of a risk. Husak’s neutral prompt and counterfactual actual belief criteria are problematic, however. More persuasive is his suggestion that we understand belief, in this moral and criminal law context, as (...) a concept whose meaning is determined by its function as a culpability standard. Husak concludes that inadvertent actors are often less culpable than knowing-but-later-forgetful actors; this is plausible, but there are also numerous counterexamples. Holly Smith focuses on negligence cases in which an agent’s failure to notice a risk stems, not from a prior culpable choice, but from an objectionable attitude or set of attitudes. She is right to emphasize that genuine moral culpability does not depend on conscious choice. However, Smith also asserts that decisions that flow from an actor’s objectionable attitudes are only rarely culpable, because they often do not arise from a reasonably full configuration of the actor’s motives. This last requirement is, I fear, an unrealistic and unnecessarily demanding criterion of culpability. Even when many of the actor’s evaluative attitudes are inactive in Smith’s sense, the actor might deserve blame for not bringing them to bear on his decision. Michael Moore and Heidi Hurd thoroughly explore, and find deficient, H.L.A. Hart’s unexercised capacity theory of negligence. They are correct that that theory requires a further judgment: an actor’s inadvertence is culpable only if he had the capacity to have adverted if X where X is the source of the actor’s moral desert. They overstate, however, in suggesting that the capacity issue falls out of the picture once we identify that underlying desert basis. The authors also worry that if desert is grounded on an underlying vice, we lack a reliable way of ranking the different vices that might explain the actor’s inadvertence; this is not a fatal objection, however, because negligence determinations are quite feasible even in the absence of clear rankings. Moore and Hurd conclude by identifying eight distinct categories in which criminal liability for negligence is justifiable. Negligence is indeed a surprisingly complex and pluralist concept. The three articles in this symposium brightly illuminate some of the most fundamental conceptual and normative issues in the debate over whether it is just to blame and punish the negligently inadvertent. (shrink)

Written by a noted expert in criminal law, this book explores the philosophical underpinnings of the law's major doctrines concerning actus reus, mens rea, and defences, showing that they are not always driven by culpability. They are grounded also in principles of moral responsibility, ascriptive responsibility, and wrongdoing. As such, they engage wider debates about wrongdoing, and about the boundaries between liability and freedom. This multi-textured analysis allows this book to take more nuanced positions about many important controversies (...) in criminal law. It argues, for example, that liability for omissions and for negligence-and even some strict liability elements-can sometimes be legitimate yet, at the same time, should be relatively rare. It also explains why principles of causation can differ in the criminal law from other contexts; what is wrong with the 'voluntary act' requirement; and why luck can affect the wrongs we commit without changing our degree of blameworthiness for committing them. The book concludes with an account of the major types of defences, and of how they interact with an agent's wrong and her underlying motivations.This volume presents a coherent and rich vision of the criminal law that, by its sheer breadth, makes a distinctive contribution to the literature, of interest to lawyers and philosophers alike. (shrink)

According to the Finnish Penal Code a corporation may be sentenced to a corporate fine if a person who is part of its statutory organ or other management or who exercises actual decision-making authority therein 1) has been an accomplice in an offence or allowed the commission of the offence, or 2) if the care and diligence necessary for the prevention of the offence has not been observed in the operations of the corporation. Criminal liability of legal persons (...) is based on the intentional or negligent acts of individuals who are in a certain relationship with the corporation. The Finnish legal doctrine clearly rejects the identification theory according to which an individual is considered as acting not for a company but as a company. According to Finnish scholarly writings, the acts of an individual offender could be attributed to the legal person under certain conditions not as acts of the legal person but as acts of the individual for the company. Nonetheless, Finnish law does not abandon the fault requirement. In this respect, Finnish law differs from the traditional common law theory of vicarious liability. (shrink)

: The paper discusses the contribution that the neuroscience of action can offer to the legal understanding of action control and responsibility in the case of adult individuals. In particular, we address the issues that follow. What are the cognitive capacities that agents must display in order to be held liable to punishment in criminal law? Is the legal model of liability to punishment compatible with a scientifically informed understanding of voluntary behaviour? To what extent should the law (...) take into account people’s subjective feelings about their own actions? As a result of our analyses, we indicate some areas where the contribution of the neuroscience of action to the law is potentially relevant. We focus on the subjectivity mechanisms of action control, specifically the requirement that the agent must violate the law voluntarily in order to be held responsible, and on the factors that modulate the wrongdoer’s experience of agency. Overall, we advocate more cross-disciplinary work, aimed to bridge the gap between conceptual boundaries, on the theme of responsibility for actions. Keywords : Responsibility; Neurolaw; Sense of Agency; Criminal Law; Criminal Liability La responsabilità tra neuroscienza e diritto penale. La componente di controllo dell’imputabilità penale Riassunto : L’articolo discute il contributo che la neuroscienza dell’azione può offrire ai temi del controllo dell’azione e della responsabilità in ambito legale, nel caso degli individui adulti. In particolare, ci occuperemo delle questioni che seguono. Quali sono le abilità cognitive che un agente deve possedere per esser considerato penalmente responsabile e quindi punibile? Il modello legalistico della responsabilità è compatibile con il modello scientifico-naturalistico del comportamento umano? Fino a che punto variazioni nel senso di controllo soggettivo sulle azioni dovrebbero essere considerate un parametro rilevante in sede penale? Sulla scorta della nostra analisi, indicheremo alcune aree nelle quali il contributo della neuroscienza dell’azione a questioni legate al tema della responsabilità legale potrebbe rivelarsi rilevante. L’articolo si concentra sui meccanismi che regolano il senso soggettivo di controllo dell’azione – in particolare il requisito secondo il quale l’agente deve violare la legge volontariamente per essere ritenuto responsabile –, e sui fattori che modulano il senso di agentività del colpevole. In conclusione, difenderemo l’appropriatezza di una più ampia riflessione multi-disciplinare volta a ridurre le incompatibilità fra differenti approcci al tema della responsabilità per le nostre azioni. Parole chiave : Responsabilità; Neurodiritto; Senso di agentività; Diritto penale; Imputabilità penale. (shrink)

Despite tremendous advances in medical care for critically ill newborn infants, caregivers in neonatal intensive care units still struggle with how to approach those patients whose prognoses appear to be the most grim, and whose treatments appear to be the most futile. Although the practice of passive neonatal euthanasia, from a moral perspective, has been widely condoned, those clinicians and families involved in such cases may still be found legally guilty of child abuse or even manslaughter. Passive neonatal euthanasia remains (...) both a moral dilemma and a legal ambiguity. Even the definition of passive euthanasia remains unclear. This manuscript reviews the basic moral and legal considerations raised by the current practice of neonatal euthanasia, and examines the formal position statements of the American Medical Association and the American Academy of Pediatrics. The paper concludes by emphasising the need, at least in the United States, to clarify the legal status of this relatively common medical practice. (shrink)

Christian theology’s concern for the individual whatever their station expanded the scope of criminal law from protection of the interests of the regime to the security of all in society. The concept of mens rea was first mentioned by Augustine of Hippo and became a key part of the Church’s canon law. From there it was adopted by the secular legal systems of both civil law and common law. Such systems imposed criminal liability on those whose state (...) of mind was adjudged to make them guilty for serious wrongs they did to others. Christian theology also offered the West’s legal systems a grammar for criminal law built around the idea of criminal responsibility for personal, voluntary, culpable acts. These requirements protected against scapegoating and stereotyping, led to the presumption of innocence, and limited the range of actions for which one could be punished. (shrink)

The slogan that criminal liability requires an ‘act’, or a ‘voluntary act’, is still something of a commonplace in textbooks of criminal law. There are, it is usually added, certain exceptions to this requirement— cases in which liability is in fact, and perhaps even properly, imposed in the absence of such an act: but the ‘act requirement’ is taken to represent a normally minimal necessary condition of criminal liability. Even offences of strict liability, (...) for which no mens rea is required, require an act: thus to the familiar slogan that actus non facit reum nisi metis sit rea we can add the prior, more fundamental slogan that mens non facit reum nisi actus sit reus ; before we ask whether a defendant acted with mens rea or fault, we must ask whether he committed a criminal act at all. (shrink)

We can gain fresh insights into aspects of criminal liability by focusing first on the prior topic of criminal responsibility, and on the relational dimensions of responsibility: responsibility is responsibility for something, to someone. We are criminally responsible as citizens, to our fellow citizens, for committing 'public' wrongs: I discuss the difficulty of giving determinate content to this idea of public wrongs, and the way in which, whereas moral responsibility is typically strict, criminal responsibility is not. (...) Finally, I explore the grounds on which defendants might deny that they are criminally responsible before the courts that seek to try them. (shrink)

The extent of a company’s responsibility for the criminal conduct of its employees, as far as such a concept is legally recognised at all, differs between jurisdictions. There has been a shift in r...

Acting as part of a corporation may allow an individual more easily to rationalize participating in a harmful act, but there are countervailing forces in corporate action that increase moral oversight and accountability. Making use of group agency to explain membership as a special feature of some corporate agents, I argue that when someone becomes a member of an organized group like a company, their own moral responsibility becomes entangled with the decisions of other members of the company, whether or (...) not they intend this effect. This moral entanglement in corporate decision-making explains why individuals have a moral obligation to act in their role as a corporate officer when they would not have an obligation to act in a personal capacity even if they had identical knowledge. The entanglement affects the individual’s own moral status and the moral status of the company itself. Moral entanglement of corporate decision-makers provides a principled explanation for a rule that is present in corporate criminal law that corporate officers with knowledge that another employee is about to commit a crime must actively intervene, and cannot rely on their status as bystanders. (shrink)

On the strict liability view, excusably ignorant agents must cover all the wrongful costs they have inadvertently brought onto others, although it is undisputed that they are not at fault. On the fault liability view, victims need not be compensated by excusably ignorant harmers. To some, both views appear harsh. Under fault liability, those who cause harm are seen as getting off scot-free while victims suffer. Under strict liability, agents are viewed as being burdened without any (...) fault of their own. In response to a seemingly intractable conflict between competing theories, some have called for compromise. Caney :210, 2010) has proposed a “modified strict liability principle” which was further developed by Bell :391–411, 2011). The principle’s revision is promising because it gives substantive reason for why and how middle ground should be achieved. In this paper, I assess this proposal and the prospects for mediating between strict and fault liability more generally. Specifically, I introduce concepts, present Bell’s principle of limited liability, critique it, and explore general avenues for finding middle ground between strict and fault liability. (shrink)

The 3rd Report of the Special Representative of the Secretary-General of the United Nations appears to have generated significant consensus around its approach to business and human rights. This state of harmony relies mainly upon a narrow mandate limiting the endeavour largely to a mapping exercise. It also relies upon a process of 'operationalisation' that is yet to be undertaken despite the recent release of a 4th Report. After a brief presentation of the main parameters of the framework proposed by (...) the 3rd Report and of its precarious advantage over other similar initiatives, this article takes a close look at the main link that needs to be operationalised: i.e. the link between corporate responsibility for human rights and the concept of legal and criminal responsibility. The article then addresses the constitutive elements of the concept of responsibility to shed light upon the responsibility of business organisations in a human rights law context. It looks at the innovative ways in which the concept of corporate criminal responsibility has been dealt with in various domestic jurisdictions and at the new paradigms of corporate agency resulting in the process. Building on this inquiry, the analysis focusses on the way in which the legal discourse acquires new dimensions of corporate responsibility by moving away from an individualistic perspective. On the basis of this, the article suggests conceptual tools that can become instrumental in the process of the operationalisation of the 3rd Report, albeit at the likely cost of rendering the consensus around it more fragile. (shrink)

There is a lot of material in this book, and Duff handles most of it very well. It is unfortunate that he felt the need to tie his discussion of serious philosophical questions in the criminal law to larger overarching questions of philosophy. It is possible that current conceptions of intentional action implicate dualism (or Dualism), I suppose, but that would be a book-length discussion all of its own. It would begin with a careful discussion of just what dualism (...) is, and would track down the various ways in which particular substantive positions on intentional action rule out alternatives to dualism. Such a work might be interesting indeed. It would be interesting, for example, to see a discussion of a type of conceptual dualism that I suspect Duff would find congenial: a dualism that insisted upon the autonomy of purposive notions and rejected the causal analysis of intentional action. Would that sort of dualism make any difference at all for the criminal law? It might, and it might not. But in any event that is not what we find in this book, which, for all of its healthy enthusiasm for the place of philosophy in the law shows an excessive tolerance for makeweight arguments about the great questions. (shrink)

In this short paper, I shall answer the title’s question first in the context of criminal law and then in the context of tort law. In that latter section, I shall also mention in passing contractual and other forms of civil liability that are strict, although they will not be my principal focus. My conclusions will be that strict liability is never proper as the basis for retributive punishment; that it is a very crude device for achieving (...) deterrence through nonretributive penalties; and that with respect to tort liability, it is best justified as a means of defining insurance categories. (shrink)