Recently (2010–2011) new criminal legislation to combat illegal income and corruption was passed and publicly discussed in Lithuania. Within the list of the new legal measures, special attention should be paid to criminalisation of illicit enrichment, establishment of a model of extended property confiscation, reinforcement of responsibility for corruption-related offenses, a provision that not only property but also personal benefits may constitute a bribe. It can be seen from the explanatory letters attached to the draft laws and the (...) political debate that the new regulation is expected to achieve decisive breakthrough in the fight against corruption and illegal income. However, without any doubt as to the necessity to fight against those social evils, the author presents critical evaluation of the reform by applying the test of principles of criminal law, legal language and practical effectiveness. By making critical conclusions that the new criminal legislation deliberately lightens the prosecution’s goal of incrimination and the burden of proof, the author warns about the purposive instrumental nature of the new laws, which are balancing on the threshold of legitimacy. In the article the author reveals crucial shortcomings of the new legislation: in some aspects it lacks legal certainty, in other aspects it ignores the principles of guilt, presumption of innocence and proportionality as well as the conception of criminal law as a last resort (ultima ratio). As a result, the new legal means against illegal income and corruption leave space for applying inadequate repression beyond their intended purpose, in addition, they criminalise human conduct that is insufficiently dangerous and create preconditions for senseless criminal prosecutions and violation of human rights. (shrink)

The book focuses on one fundamental thesis: when creating the norms of criminal law, the legislator should strive for their compatibility with the principle of human dignity while taking into account the ethical legitimacy of criminal law.

In recent years an increasing quantity of UK legislation has introduced blended or ‘hybridised’ procedures that blur the previously clear demarcation between civil and criminal legal processes, typically on the grounds of normatively-motivated political expediency. This paper provides a critical perspective on instances of procedural hybridisation in order to illustrate that, first, the reliance upon civil law measures to remedy criminal law infractions can raise human rights issues and, second, that such instrumental criminal justice strategies deliberately (...) circumvent the enhanced procedural protections of the criminal law. By conceptualising the rule of law as a structural coupling between the political and legal systems, and due process rights as necessary and self-imposed limitations upon systemic operations, this paper employs a systems-theoretical approach to critique this balancing act between expediency and principle, and queries the circumstances under which legislation contravening the rule of law can be said to lack legitimacy. (shrink)

ABSTRACTAn influential view in recent philosophy of punishment is that the apparatus of criminal justice should be geared at least in part to state censure of wrongdoing. I argue that if it were to be so geared, such an apparatus would make ambitious claims to authority, and that the legitimacy of the relevant state would then depend on whether those claims can be vindicated. This paper looks first at what kind of authority is being claimed by this apparatus. (...) The criminal law, I argue, cannot merely be thought of as claiming a right to rule and to be obeyed. Rather, its authority is better understood as the authority of moral oversight: a power to alter, at will, citizens’ liability to answer for their compliance with—and to be officially censured for their failure to comply with—a designated set of pre-existing moral 7reasons. The paper then looks at whether a state could realistically be expected to possess such authority—that is, whether a state that claims to have such a power could ever be legitimate. (shrink)

I begin by discussing the ways in which a would‐be blamer's own prior conduct towards the person he seeks to blame can undermine his standing to blame her (to call her to account for her wrongdoing). This provides the basis for an examination of a particular kind of ‘bar to trial’ in the criminal law – of ways in which a state or a polity's right to put a defendant on trial can be undermined by the prior misconduct of (...) the state or its officials. The examination of this often neglected legal phenomenon illuminates some central features of the criminal law and the criminal process, and some of the preconditions for the legitimacy of the criminal law in a liberal republic. (shrink)

I begin by discussing the ways in which a would-be blamer's own prior conduct towards the person he seeks to blame can undermine his standing to blame her. This provides the basis for an examination of a particular kind of 'bar to trial' in the criminal law – of ways in which a state or a polity's right to put a defendant on trial can be undermined by the prior misconduct of the state or its officials. The examination of (...) this often neglected legal phenomenon illuminates some central features of the criminal law and the criminal process, and some of the preconditions for the legitimacy of the criminal law in a liberal republic. (shrink)

The ethics of policing currently neglects to provide a framework for analysing the morality of deliberate inactions to prevent harm, even though these are often adopted tactically by police as a means of preventing greater harms. In this paper we argue (a) that police have special moral obligations to prevent harm, grounded both in a contractarian account of police legitimacy and in the interpersonal morality of associations and (b) that police are morally culpable for failures to fulfil these special (...) obligations when these are neither proportionate nor necessary to the prevention of greater crime-related harms. Our claims have implications both for the morality of policing and for its regulation and governance under human rights legislation, which we argue should be reformed so as to recognise police culpability not only for inflictions of harm, but also for failures to prevent it. (shrink)

Equality before the law is one of the fundamental guarantees citizens expect in a just and fair society. We argue that recent trend toward mass incarceration, which has had vastly disproportionate impact on African Americans, is undermining this claim to fairness and raises a serious legitimacy problem for the legal system as a whole. Using original data from the Race, Crime and Public Opinion study we show that African Americans view the 'War on Drugs" as racially biased in its (...) implementation. This perception of bias consequentially undermines legal system legitimacy by lowering blacks' expectations for police performance in their communities and encouraging receptivity to appeals for jury nullification based on race. (shrink)

El presente artículo se propone indagar los problemas que hacen al déficit de legitimidad de lo que ha dado en llamarse la "justicia política", esto es, las respuestas judiciales frente a herencias de criminalidad política. Sugerimos que se trata de problemas estructurales que están en los límites de lo jurídico y que, por tanto, no constituyen una falla del sistema judicial en sí mismo. Con ese fin, sobre la base de los análisis realizados por Danilo Zolo y Hannah Arendt, examinamos (...) problemas estructurales en tres niveles: en la imparcialidad e independencia del tribunal, en el respeto de los principios, las normas y los procedimientos del derecho, y en el requisito de un elemento subjetivo para atribuir la responsabilidad penal de un crimen. Le propos de notre article est celui de s'interroger sur les problèmes qui produisent un déficit de légitimité en ce qu'on a appelé la " justice politique ", c'est-à-dire, les réponses judiciaires qu'on donne au legs de criminalité politique. Nous suggérons qu'il s'agit de problèmes structurels qui se situent à la limite du juridique et qui, par conséquent, ne constituent pas une faille du système juridique lui-même. Dans ce but, et sur la base des analyses réalisées par Danilo Zolo et Hannah Arendt, nous examinons trois types des problèmes : ceux qui tiennent à l'impartialité et à l'indépendance du tribunal, ceux concernant le respect des principes, normes et procédures du droit, et celui lié a l'exigence d'un élément subjectif dans l'attribution de la responsabilité pénale d'un crime. (shrink)

At the end of the first part of the Philosophy of Right, Hegel outlines a retributivist theory of criminal punishment. According to this view, crime is an infringement of right, a negation which itself must be negated in order to establish the actuality of right. Crime is superseded through punishment, which inflicts on the criminal an injury that is equal in magnitude or “value” to the injury inflicted by the crime itself. Nothing in this account appears to foreclose (...) the possibility that an appropriate penalty for some crimes may be death. Indeed, some passages in the Philosophy of Right strongly imply an acceptance of the legitimacy of capital punishment for certain crimes, such as murder. (shrink)

Whenever the legitimacy of a new or ethically contentious medical intervention is considered, a range of influences will determine whether the treatment becomes accepted as lawful medical treatment. The development and introduction of abortion, organ donation, gender reassignment, and non-therapeutic cosmetic surgery have, for example, all raised ethical, legal, and clinical issues. This book examines the various factors that legitimatise a medical procedure. Bringing together a range of internationally and nationally recognised academics from law, philosophy, medicine, health, economics, and (...) sociology, the book explores the notion of a treatment, practice, or procedure being proper medical treatment, and considers the range of diverse factors which might influence the acceptance of a particular procedure as appropriate in the medical context. Contributors address such issues as clinical judgement and professional autonomy, the role of public interest, and the influence of resource allocation in decision-making. In doing so, the book explores how the law, the medical profession, and the public interact in determining whether a new or ethically contentious procedure should be regarded as legitimate. This book will be of interest and use to researchers and students of bioethics, medical law, criminal law, and the sociology of medicine. (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)

Journal of Social Philosophy, EarlyView.

Journal of Social Philosophy, EarlyView.

Journal of Social Philosophy, EarlyView.

Journal of Social Philosophy, EarlyView.

Hegel does not directly examine the legitimacy of capital punishment in the Philosophy of Right. There is an implication of vengeful death in the endless retribution that characterizes abstract right, and also in the potential carnage that can result from non-compliance with the prevailing order in a society based upon morality; but in terms of just punishment, which can only occur in the state, Hegel is silent on the matter of the death penalty. It is mentioned occasionally in the (...) “additions” to the main text provided by the lecture notes of Hegel’s students, wherein Hegel reportedly speaks of the necessity of the death penalty for murder, and the undesirability of capital punishment for most lesser crimes. Although the conclusions of this paper do not contradict either of these representations of Hegel’s opinion about capital punishment, the arguments used will not rely on the additions since their authority is not beyond question. Rather, this paper will be concerned only with Hegel’s own pronouncements, which refer directly to the death penalty only twice—and each time in connection to historical treatments of the subject. Both Draco’s “barbarous” insistence that every criminal meet with death, and Beccaria’s arguments against the right of the state to employ the death penalty are criticized by Hegel, but the object of criticism in each case is the reasoning behind their respective positions. Nowhere in the main text of the Philosophy of Right does Hegel explicitly endorse or deny the legitimacy of capital punishment. (shrink)

Hegel does not directly examine the legitimacy of capital punishment in the Philosophy of Right. There is an implication of vengeful death in the endless retribution that characterizes abstract right, and also in the potential carnage that can result from non-compliance with the prevailing order in a society based upon morality; but in terms of just punishment, which can only occur in the state, Hegel is silent on the matter of the death penalty. It is mentioned occasionally in the (...) “additions” to the main text provided by the lecture notes of Hegel’s students, wherein Hegel reportedly speaks of the necessity of the death penalty for murder, and the undesirability of capital punishment for most lesser crimes. Although the conclusions of this paper do not contradict either of these representations of Hegel’s opinion about capital punishment, the arguments used will not rely on the additions since their authority is not beyond question. Rather, this paper will be concerned only with Hegel’s own pronouncements, which refer directly to the death penalty only twice—and each time in connection to historical treatments of the subject. Both Draco’s “barbarous” insistence that every criminal meet with death, and Beccaria’s arguments against the right of the state to employ the death penalty are criticized by Hegel, but the object of criticism in each case is the reasoning behind their respective positions. Nowhere in the main text of the Philosophy of Right does Hegel explicitly endorse or deny the legitimacy of capital punishment. (shrink)

Four questions dominate normative contemporary constitutional theory: What is the purpose of a constitution? What makes a constitution legitimate? What kinds of arguments are legitimate within the process of constitutional interpretation? What can make judicial review of legislation legitimate in principle? The main purpose of this text is to provide one general answer to the last question. The secondary purpose is to show how this answer may bear upon our understanding of the fundamental basis of constitutional law. These two (...) purposes should suggest particular answers to the first three questions. (shrink)

A common criticism of the use of algorithms in criminal justice is that algorithms and their determinations are in some sense ‘opaque’—that is, difficult or impossible to understand, whether because of their complexity or because of intellectual property protections. Scholars have noted some key problems with opacity, including that opacity can mask unfair treatment and threaten public accountability. In this paper, we explore a different but related concern with algorithmic opacity, which centers on the role of public trust in (...) grounding the legitimacy of criminal justice institutions. We argue that algorithmic opacity threatens the trustworthiness of criminal justice institutions, which in turn threatens their legitimacy. We first offer an account of institutional trustworthiness before showing how opacity threatens to undermine an institution’s trustworthiness. We then explore how threats to trustworthiness affect institutional legitimacy. Finally, we offer some policy recommendations to mitigate the threat to trustworthiness posed by the opacity problem. (shrink)

In some instances, the criminal justice system is affected by a moral panic; that is, by an exaggerated social reaction to an assumed threat to moral values. When influenced by moral panic, courts...

Drawing on historical and contemporary evidence from Great Britain and Italy, this article examines actions that fall under official definitions of corruption and actions that are not illegal but are widely regarded as morally corrupt. As a social anthropologist, I argue that when dealing with the complexity of corruption and abuses of power, we need to identify what aspects of the system encourage or generate illicit practices (illegal and legal) and what aspects could instead generate real change. It is imperative (...) to assess the precise identity of the dividing line between the legitimate and the illegitimate and between the legal and the moral, and to address both the exact relationship of the protagonists in public life to formal law and its production and their perceived legitimacy in the broader society. Empirical evidence suggests that the production of the law must take into account the moralities which inform the definition of legitimacy at the grassroots, for legislation that enjoys such legitimacy is authoritative-therefore effective-legislation, and thus is governance that benefits from and abides by such legislation. (shrink)

Legal positivism dominates in the debate between it and naturallaw, but close attention to the work of Thomas Hobbes – the``founder'' of the positivist tradition – reveals a version ofanti-positivism with the potential to change the contours of thatdebate. Hobbes's account of law ties law to legitimacy throughthe legal constraints of the rule of law. Legal order isessential to maintaining the order of civil society; and theinstitutions of legal order are structured in such a way thatgovernment in accordance with (...) the rule of law is intrinsicallylegitimate.I focus on Hobbes's neglected catalogue of the laws of nature.Only the first group gets much attention. Its function is tofacilitate exit from the state of nature, an exit which Hobbesseems to make impossible. The second group sets out the moralpsychology of both legislators and subjects necessary to sustaina properly functioning legal order. The third sets out the formalinstitutional requirements of such an order. The second and thirdgroups show Hobbes not concerned with solving an insolubleproblem of exit from the state of nature but with theconstruction of legitimate order. Because a sovereign is bydefinition one who governs through law, Hobbes's absolutism isconstrained. Government in accordance with the rule of law isgovernment subject to the moral constraints of the institutionsof legal order. (shrink)

Legal positivism dominates in the debate between it and natural law, but close attention to the work of Thomas Hobbes -- the "founder" of the positivist tradition -- reveals a version of anti-positivism with the potential to change the contours of that debate. Hobbes's account of law ties law to legitimacy through the legal constraints of the rule of law. Legal order is essential to maintaining the order of civil society; and the institutions of legal order are structured in (...) such a way that government in accordance with the rule of law is intrinsically legitimate. I focus on Hobbes's neglected catalogue of the laws of nature. Only the first group gets much attention. Its function is to facilitate exit from the state of nature, an exit which Hobbes seems to make impossible. The second group sets out the moral psychology of both legislators and subjects necessary to sustain a properly functioning legal order. The third sets out the formal institutional requirements of such an order. The second and third groups show Hobbes not concerned with solving an insoluble problem of exit from the state of nature but with the construction of legitimate order. Because a sovereign is by definition one who governs through law, Hobbes's absolutism is constrained. Government in accordance with the rule of law is government subject to the moral constraints of the institutions of legal order. (shrink)

Retributivism is often portrayed as a rights-respecting alternative to consequentialist justifications of punishment. However, I argue that the political legitimacy of retribution is doubtful precisely because retribution privileges a controversial conception of the good over citizens’ rights and more widely shared, publicly accessible interests. First, even if retribution is valuable, the best accounts of its value fail to show that it can override or partially nullify offenders’ rights to the fundamental forms of liberty of which criminal punishment paradigmatically (...) deprives them. Second, the importance of publicly justifying basic forms of coercion on the basis of broadly shared values is a good reason to think that the state should not punish for retribution even those citizens whose actions have created a state interest in punishing them that overrides or partially nullifies their presumptive rights. (shrink)

Public legitimacy consists of beliefs among the mass public that an international court has the right to exercise authority in a certain domain. If publics strongly support such authority, it may be more difficult for governments to undermine an international court that takes controversial decisions. However, early studies found that while a majority of the public trusts international courts, this was based on weak attitudes derivative from more general legal values and support for the international institutions. I reexamine these (...) claims with data for European courts, the International Criminal Court, and the International Court of Justice. First, using Google search data and media-analysis I find that, at least in Europe, information-seeking about international courts has increased and is at similar levels to national high courts and prominent international institutions. Second, trust in international courts remains strongly correlated with trust in international and domestic institutions. Countries in which more individuals trust their national courts are also countries in which more individuals trust international courts. Individuals who trust their national courts more are also more trusting of international courts. This undermines at least some interpretations of the credible commitment argument: in the minds of the general public, international courts may not be substitutes for poorly performing domestic courts, but extensions of a functioning rule of law system that they already trust. (shrink)

Klaus Günther’s discourse theory of law links the concept of criminal responsibility with the legitimacy of democratic law. Because attributions of criminal responsibility are always aimed at a person, they contain an implicit conception of the person. In a democracy under the rule of law, Günther argues, this conception of a person must be understood, as a “deliberative person”, a free and autonomous person capable of being both the addressee and the author of legal norms. The “deliberative (...) person” is the conceptual core of criminal responsibility, yet Günther develops it using a concept of “communicative accountability” modeled on the concept of criminal responsibility that it is designed to explicate. My aim is to bring this circular grounding of criminal responsibility into view and argue that Günther’s discourse theory of law is based on a legalized picture of discourse. (shrink)

It has long been argued that the institution of judicial review is incompatible with democratic institutions. This criticism usually relies on a procedural conception of democracy, according to which democracy is essentially a form of government defined by equal political rights and majority rule. I argue that if we see democracy not just as a form of government, but more basically as a form of sovereignty, then there is a way to conceive of judicial review as a legitimate democratic institution. (...) The conception of democracy that stems from the social contract tradition of Locke, Rousseau, Kant and Rawls, is based in an ideal of the equality, independence, and original political jurisdiction of all citizens. Certain equal basic rights, in addition to equal political rights, are a part of democratic sovereignty. In exercising their constituent power at the level of constitutional choice, free and equal persons could choose judicial review as one of the constitutional mechanisms for protecting their equal basic rights. As such, judicial review can be seen as a kind of shared precommitment by sovereign citizens to maintaining their equal status in the exercise of their political rights in ordinary legislative procedures. I discuss the conditions under which judicial review is appropriate in a constitutional democracy. This argument is contrasted with Hamilton's traditional argument for judicial review, based in separation of powers and the nature of judicial authority. I conclude with some remarks on the consequences for constitutional interpretation. (shrink)

This paper extends Alan John Simmons?s conceptual distinction between Lockean and Kantian conceptions of legitimacy that he applied to the question of the legitimacy of states, to the issue of legitimacy of public decisions. I criticise the consent conception of legitimacy defended by Simmons, and I defend the Rawlsian version of the justificatory conception of legitimacy from his objection. The approach of this paper is distinctive because the two conceptions are assessed by investigating, using the (...) method of reflective equilibrium, their respective prescriptions concerning the treatment of antisocial personality disorder and epidemiologic measures. I argue that the method of reflective equilibrium does not support the consent conception. Considering the issues of treatment of APD and of epidemiologic measures, I argue that the consent conception of legitimacy is not well-equipped for the evaluation of norms that are not strictly self-regarding. This causes a deficit of prescriptions for relevant social responses. Further, by considering the case of responses to epidemics, I argue that such a conception can avoid harmful consequences only by recurring to additional, and independent, premises. This does not cause incoherence but reduces the coherence of a normative system. Finally, the consent conception is not equipped to support social cooperation in an optimal way, which has proved to be necessary in critical conditions, like a pandemic. On the other hand, I argue that the method of reflective equilibrium supports the Rawlsian version of justificatory conception of legitimacy, because of its advantages in handling the indicated issues. In addition, I maintain that this justificatory conception is respectful of freedom and equality of agents as moral self-legislators, and, thus, it is not vulnerable to Simmons?s main criticism. (shrink)

Recent developments in criminal legislation of the Republic of Lithuania among other significant novelties include the criminalization of illicit enrichment as criminal offence. Such offence presents new legal instrument for the law enforcement in dealing with individuals who acquire property in doubtful ways. The crime of illicit enrichment is rather a novelty within the context of criminal legislation. Such novelty was largely based upon the requirements of United Nations Convention against Corruption, which stipulates the implementation (...) of such legal measure. According to the article Twenty of the convention, “Subject to its constitution and the fundamental principles of its legal system, each State Party shall consider adopting such legislative and other measures as may be necessary to establish as a criminal offence, when committed intentionally, illicit enrichment, that is, a significant increase in the assets of a public official that he or she cannot reasonably explain in relation to his or her lawful income”. While the convention was undoubtedly major factor for making grounds for said developments the need to widen the scope of confiscation of property and impound illegally acquired wealth were the driving forces behind the political will to support amendments to the Criminal Code. At same time the new offence of illicit enrichment presents significant challenges for the investigative bodies with the prosecution as well as the courts establishing such offences. First and foremost, the techniques of criminalization and legal wording of the offence are new and do not go well with the established principles of criminalization. Unnatural features of the corpus of the crime listed in the code (article No. 1891 of the Criminal Code of Lithuania) involve criminal act lacking attributes illegitimacy, complications regarding guilt of the accused. In addition, doubts and questions regarding the fundamental principles of criminal procedure, due process concerns, and problems of the balance of the rights of the accused with the right of the society to recover illicitly acquired wealth. The relationship of illicit enrichment to other criminal acts committed by the same accused is also of a great importance in establishing sources of such enrichment. As for the time of submission of present article, one hundred and seven interrogations on the illicit enrichment were on and lasting while only three simplified judgments and one proper court sentence were passed. The reasons for such slow implementation of the law are the ambiguities of the definition of law, as well as limitations of regulations, insufficiencies in asset declaration systems, lack of theoretical background and complete absence of court practice on such cases. Two of the existing convictions are analyzed from the point of view of establishment of guilt, the evidence set in the case, the grounds of adequacy of such convictions. The examples presented give basis to judge the adequacy of the new law an opportunity to predict the future rulings of the courts. Necessity of the improvements of the law becomes quite obvious on the basis of the analysis. Strong criticisms, various scientific suggestions on the improvements of the regulations, namely on the constitution of guilt, wording of the criminal act are presented by the author. (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)

Duff offered an argument for the conclusion that just or legitimate punishment of socially deprived offenders in our unjust society is impossible. One of the claims in his argument is that our courts have the standing to blame an offender only if our polity has the right to do so since our courts are acting as the representatives of, or to use the exact phrases by Duff, “in the name of”, or “on behalf of”, the whole polity. In this paper (...) I will challenge that claim. I will argue that the courts can be seen as acting, not on behalf of the whole polity, but only on behalf of a subset of its citizens, namely, the just citizens (i.e. the citizens who cannot be seen to have wronged the deprived offenders). (shrink)

The evidence suggests that employers discriminate against ex-offenders in the labour market. The problem is potentially serious as it involves a substantial proportion of the population, especially the male population. Since research has shown that most people with prior convictions stop offending by their late 20s or early 30s, the validity of selection based on criminal record remains questionable. This paper examines the need for legal protection of ex-offenders by limiting employers' access to, and use of, information on (...) class='Hi'>criminal background. The rights and interests of the various parties involved, employers, ex-offenders, and the general public, are discussed. Approaches to the legal protection of ex-offenders in Australia are reviewed and legislative changes proposed. (shrink)

This volume offers a selection of significant and influential research articles from the contemporary philosophical debate over the fundamental concepts and structures of Anglo-American criminal law. The articles consider the moral legitimacy of punishment, excuse and justification defenses and the conundrums of attempt liability, the bases of culpability and criminal responsibility and the appropriate limits of the criminal law. The introduction clarifies the contexts in which these subjects are discussed, and the volume includes an extensive bibliography.

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)

The most contentious aspect of South Africa's Truth and Reconciliation Commission (TRC) concerned its amnesty‐granting powers. In return for perpetrators providing full disclosure about their crimes, the TRC was authorized to release them from both criminal responsibility and civil liability. This essay takes up the thorny question of how such a commission might be morally justified. Part 1 discusses the political circumstances that led to the creation of the TRC. Part 2 provides a critical survey of some previous attempts (...) to justify the commission's work. Part 3 offers a new justification, grounded in Adam Smith's notion of sympathy; after outlining some of the benefits of sympathy for political reconciliation, I argue that the work of a South African–style truth commission can promote sympathy between former enemies. (shrink)

The most contentious aspect of South Africa's Truth and Reconciliation Commission (TRC) concerned its amnesty‐granting powers. In return for perpetrators providing full disclosure about their crimes, the TRC was authorized to release them from both criminal responsibility and civil liability. This essay takes up the thorny question of how such a commission might be morally justified. Part 1 discusses the political circumstances that led to the creation of the TRC. Part 2 provides a critical survey of some previous attempts (...) to justify the commission's work. Part 3 offers a new justification, grounded in Adam Smith's notion of sympathy; after outlining some of the benefits of sympathy for political reconciliation, I argue that the work of a South African–style truth commission can promote sympathy between former enemies. (shrink)

Can the evidence provided by software systems meet the standard of proof for civil or criminal cases, and is it individualized evidence? Or, to the contrary, do software systems exclusively provide bare statistical evidence? In this paper, we argue that there are cases in which evidence in the form of probabilities computed by software systems is not bare statistical evidence, and is thus able to meet the standard of proof. First, based on the case of State v. Loomis, we (...) investigate recidivism predictions provided by software systems used in the courtroom. Here, we raise problems for software systems that provide predictions that are based on bare statistical evidence. Second, by examining the case of People v. Chubbs, we argue that the statistical evidence provided by software systems in cold hit DNA cases may in some cases suffice for individualized evidence, on a view on which individualized evidence is evidence that normically supports the relevant proposition (Smith, in Mind 127:1193–1218, 2018). (shrink)

A standard view about criminal law distinguishes between two kinds of offenses, “mala in se” and “mala prohibita.” This view also corresponds to a distinction between two bases for criminalization: certain acts should be criminalized because they are moral wrongs; other acts may be criminalized for the sake of promoting overall welfare. This paper aims to show two things: first, that allowing for criminalization for the sake of promoting welfare renders the category of wrongfulness crimes largely redundant. Second, and (...) more importantly, accepting welfare as a legitimate ground for criminalization implies a certain view about legitimate state action, which makes criminalization for wrongfulness more difficult to justify. If I am right, the view that keeps the two categories of criminalization as largely separate is untenable. I conclude with some remarks about the advantages of welfare as the basis for criminalization. (shrink)

The general mitigating and aggravating circumstances of criminal liability are elements attached to the crime that, when they occur, affect the punishment quantum. Cuban criminal legislation provides a catalog of such circumstances and some general conditions for their application. Such norms give judges broad discretion in assessing circumstances and adjusting punishment based on the intensity of those circumstances. In the interest of broad judicial discretion, the law does not establish specific ways for measuring circumstances’ intensity. This gives (...) judges more freedom and autonomy, but it also imposes on them more social responsibility and challenges them to manage the uncertainty and subjectivity inherent in this complex activity. This paper proposes a model to aid the linguistic assessment of circumstances’ intensity and to provide linguistic and numerical recommendations to determine an appropriate punishment interval. M-LAMAC determines the collective evaluation of circumstances of the same type, determines the prevalence of a type of circumstance by means of a compensation function, recommends the required modification in the input interval, and finally recommends a numerical interval adjusted to the judges’ initially expressed preferences. The model’s applicability is demonstrated by means of several experiments on a fictitious case of bank document forgery. (shrink)

The rapid implementation and continuing expansion of forensic DNA databases around the world has been supported by claims about their effectiveness in criminal investigations and challenged by assertions of the resulting intrusiveness into individual privacy. These two competing perspectives provide the basis for ongoing considerations about the categories of persons who should be subject to non-consensual DNA sampling and profile retention as well as the uses to which such profiles should be put. This paper uses the example of the (...) current arrangements for forensic DNA databasing in England and Wales to discuss the ways in which the legislative and operational basis for police DNA databasing is reliant upon continuous deliberations over these and other matters by a range of key stakeholders. We also assess the effects of the recent innovative use of DNA databasing for “familial searching” in this jurisdiction in order to show how agreed understandings about the appropriate uses of DNA can become unsettled and reformulated even where their investigative effectiveness is uncontested. We conclude by making some observations about the future of what is recognized to be the largest forensic DNA database in the world. (shrink)

In 1935, when the U.S. Supreme Court’s new building opened and displayed the phrase “Equal Justice Under Law,” racial segregation was commonplace, as were barriers limiting opportunities for men and women of all colors to participate in economic and political life. The justices on the Court and the lawyers appearing before them reflected those facts; almost all were white men. Today, the Supreme Court’s inscription has become its motto, read as if it always referenced an understanding of equality that has (...) become central to the identity and the legitimacy of courts. The judiciary “looks” somewhat different than it did and, in a sense, has become more “representative” of the range of people appearing in courts. Given the role that courts had played in sustaining discrimination, the impression that courts ought to welcome everyone is a major achievement. Yet, to assess the impact of new judicial demographics requires analysis of other major alterations in U.S. courts—the influx of diverse litigants newly entitled to pursue legal claims; the economic barriers facing many claimants; the emergence of judiciaries as agency-like promoters of agendas; and the displacement of public adjudication through the privatization of dispute resolution. Studies of women as judges focus mostly on their rulings, but probing the “difference that difference makes” requires looking beyond judicial opinions. Courts in the United States have developed structural capacities to propose rules and legislation, create education programs, commission research and task forces, and lobby for resources. When women of all colors and men of color became lawyers and judges, they created affinity organizations and pressed courts to research court-based bias and to revise rules of ethics, doctrine, and practice. Those changes are part of the impact of diversification within the legal profession, as is the backlash against affirmative efforts to reform practices. Another difference of the last decades is that new rights have brought into court many claimants with limited means. Participatory participation remains elusive, while the “justice gap” is pervasive. Worse yet, in some jurisdictions, courts have served as “revenue centers,” using court-imposed assessments as income. Failure to pay “legal financial obligations” can result in suspension of driver’s licenses, the loss of voting rights, and other sanctions levied disproportionately on people who are poor and of color. Instead of being seen as fonts of fairness, courts are coming to be identified as sites of inequality. In addition, many courts have embraced alternative forms of dispute resolution that make both processes and outcomes less visible to the public. Through doctrine and rules, U.S. courts have shifted their own practices as well as enforced mandates imposed on consumers and employers that push them out of court and out of class or joint actions. In sum, the new faces on the bench ought not to obscure that the project of representation, inclusion, and equality is far from complete. The vivid inequalities in courts are problems for courts because such disparities undermine their ability to be places of justice. (shrink)

Some goods and services seem to be fundamentally public, such as legislation, criminal punishment, and fighting wars. By contrast, other functions, such as garbage collection, do not. This volume brings together prominent scholars from a range of academic fields - including law, economics, philosophy, and sociology - to address the core question of what makes a certain good or service fundamentally public and why. Sometimes, governments and other public entities are superior because they are more likely to get (...) at the right decisions or follow fair procedures. In other instances, the provision of goods and services by public entities is intrinsically valuable. By analyzing the these answers, the authors also explore the nature of the state and its authority. This handbook explores influential arguments for and against privatization and also develops a number of key studies explaining, justifying, or challenging the legitimacy and the desirability of public provision of particular goods and services. (shrink)