This article attempts to re-establish the importance of Foucault's work for an understanding of the way in which modern law operates. This argument has two stages. Firstly, there is a critique of the interpretation of Foucault's work by legal and sociological thinkers. It is argued that by reading the term ‘juridical’ as synonymous with the term ‘law’ in Foucault, people miss the substance of Foucault's argument. The term juridical describes an arrangement and a representation of power rather than the law. (...) This is made clear through a critique of J. S. Mill's On Liberty which is shown to make a juridical distinction between power and a free space of action which is unsustainable. Secondly, Foucault's genealogy of power relations is recast from the perspective of a legal theoretician. Foucault's history of power relations is constructed from historical differences in the mode of operation of power and discourse. By analysing these differences and their relationship to the mode of operation of law, an account of the place of modern law in Foucault's genealogy is established. Modern law operates between Foucault's concepts of government and discipline. It provides a key way in which government decisions can adjust the relationships between disciplinary institutions. This introduces the idea that law begins to operate in the perspective of the complete lives of individuals rather than just to prevent certain actions. Law, then, operates in accordance with what Foucault calls ‘bio-power’. (shrink)

Two theories of excuses are currently popular in criminal law theory: the character theory and the capacity theory. In the former the defendant claims that although he performed a wrongful action, it did not properly reflect his character. In the latter, the defendant claims that although he performed a wrongful action he lacked the capacity to do otherwise. In John Gardner's view neither claim is adequate to provide the defendant with an excuse. Excuses, Gardner thinks, are only appropriate where the (...) defendant can claim that he has lived up to the standards reasonably to be expected of a person performing the role that the defendant was performing. The view defended here is that whilst the Gardner style excuse is an excuse, both of the claims that he rejects properly ground excuses in the criminal law as well. Furthermore, they do not exhaust the field of excuses. Excuses are best seen as defences that mop up where an application of the other rules of the criminal law would not adequately serve its principles. No further ordering of excuses is possible. (shrink)

This book offers a critical examination of those theories and advances a new argument for punishment's justification, calling it the 'duty view'.

Our attitudes to wrongdoers, and what social and institutional practices we apply to them or engage them in, depend on whether (in our eyes) they are responsible for their wrongdoing. They also depend on whether we see them as fully or partially responsible agents more generally. Very crudely, we hold to account agents who are responsible for their conduct to account, where we treat the non-responsible. This chapter explores the relationship between treatment and accountability by critically engaging with P F (...) Strawson’s influential views on the issue. It argues that the appropriate distinction between treatment and accountability is based primarily on the content of interpersonal exploration of wrongdoing rather than the attitudes and practices that are involved in these practices. (shrink)

This chapter is a response to Derek Baker’s careful and subtle reading of, and critical engagement with, both my paper, and P F Strawson’s ‘Freedom and Resentment’.

The Criminalization series arose from an interdisciplinary investigation into criminalization, focussing on the principles that might guide decisions about what kinds of conduct should be criminalized, and the forms that criminalization should take. Developing a normative theory of criminalization, the series tackles the key questions at the heart of the issue: what principles and goals should guide legislators in deciding what to criminalize? How should criminal wrongs be classified and differentiated? How should law enforcement officials apply the law's specifications of (...) offences? The sixth volume in the series offers a philosophical investigation of the relationship between moral wrongdoing and criminalization. Considering the justification of punishment, the nature of harm, the importance of autonomy, inchoate wrongdoing, the role of consent, and the role of the state, the book provides an account of the nature of moral wrongdoing, the sources of wrongdoing, why wrongdoing is the central target of the criminal law, and the ways in which criminalization of non-wrongful conduct might be permissible. (shrink)

This book provides a systematic, philosophically informed account of criminal responsibility. It begins by providing a general account of criminal responsibility based on the relationship between the action that the defendent has performed and their character. It then moves on to reconsider some of the central doctrines of criminal responsibility in the light of that account.

This article is concerned with what constitutes interference with the presumption of innocence and what justifications there might be for such interference. It provides a defence of a theory of the presumption of innocence that suggests that the right is interfered with if the offence warrants conviction of defendants who are not the intended target of the offence. This thesis is defended against two alternative theories. It then considers what might justify interference with the presumption of innocence. It explores the (...) idea that interference is justified if it is necessary in a democratic society and considers the presumption in relation to the aims of the criminal trial. It is concluded that no good grounds have been provided for interference with the right, and that the right should be regarded as inviolable. (shrink)

A widespread view in moral, legal, and political philosophy, as well as in public discourse, is that responsibility makes a difference to the fair allocation or distribution of things that are valuable or disvaluable independently of responsibility. For example, the fairness of punishing a person for wrongdoing varies with her responsibility for wrongdoing; the fairness of requiring a person to pay compensation varies with her responsibility for the harm that she caused; the fairness of one person being worse off than (...) another varies with her responsibility for being worse off; the fairness of inflicting defensive harm on a person to avert a threat varies with her responsibility for causing or posing the threat; and so on. (shrink)

This article explores the moral significance of consent in an unjust world by developing the view that the validity of consent depends on its causes. It defends the view that the causes of consent make it valid or invalid. It then shows how this idea helps us to distinguish different ways in which consent might matter morally where it has problematic causes. Finally, it uses this analysis to explore the moral significance of a range of problematic causes of consent, including (...) objectification, arranged marriage, and third-party threats of violence. (shrink)

Victor Tadros offers a new account of the ethics of war and the legal regulation of war. He focuses especially on the conduct of individuals - for instance, whether they are required to follow orders to go to war, what moral constraints there are on killing in war, and the extent to which the laws of war ought to reflect the morality war.

This article explores the extent to which the magnitude of harm that a person is liable to suffer to avert a threat depends on the magnitude of her causal contribution to the threat. Several different versions of this view are considered. The conclusions are mostly skeptical—facts that may determine how large of a causal contribution a person makes to a threat are not morally significant, or not sufficiently significant to make an important difference to liability. However, understanding ways in which (...) causation may be scalar helps to deepen our understanding of other morally significant facts, such as responsibility. (shrink)

In his recent book, Killing in War, Jeff McMahan sets out a number of conditions for a person to be liable to attack, provided the attack is used to avert an objectively unjust threat: (1) The threat, if realized, will wrongfully harm another; (2) the person is responsible for creating the threat; (3) killing the person is necessary to avert the threat, and (4) killing the person is a proportionate response to the threat. The present article focuses on McMahan's second (...) condition, which links liability with responsibility. McMahan's use of the responsibility criterion, the article contends, is too restrictive as an account of liability in general and an account of liability to be killed in particular. In order to defend this claim, the article disambiguates the concept of liability and explores its role in the philosophical analysis of the permission to cause harm to others. (shrink)

A normative power is a power to alter rights and duties directly. This paper explores what it means to alter rights and duties directly. In the light of that, it examines the kind of argument that might support the existence of normative powers. Both simple and complex instrumentalist accounts of such powers are rejected, as is an approach to normative powers that is based on the existence of normative interests. An alternative is sketched, where normative powers arise based on the (...) appropriateness of a person responding to a decision by limiting their freedom. (shrink)

This paper examines Derk Pereboom’s argument against punishment on deterrent grounds in his recent book Free Will, Agency, and Meaning in Life. It suggests that Pereboom’s argument against basic desert has not been shown to extend to the view that those who act wrongly lose rights against punishment for deterrent reasons. It further supports the view that those who act wrongly, if they fulfil compatibilist conditions of responsibility, do lose rights to avert threats they pose. And this, it is argued, (...) supports punishment on deterrent grounds, at least in some limited cases. (shrink)

This essay argues that culpability and responsibility are independent notions, even though some of the same facts make us both responsible and culpable. Responsibility for one’s conduct is grounded in the strength of the agential connection between oneself and one’s conduct. Culpability for one’s conduct is the vices that give rise to that conduct. It then argues that responsibility and culpability for causing a threat are each grounds of liability to defensive harm independent of the other.

I argue that people are sometimes justified in participating in unjust wars. I consider a range of reasons why war might be unjust, including the cause which it is fought for, whether it is proportionate, and whether it wrongly uses resources that could help others in dire need. These considerations sometimes make fighting in the war unjust, but sometimes not. In developing these claims, I focus especially on the 2003 Iraq war.

When, why, and in what ways, do a person's errors have a bearing on whether they validly consent to another person's conduct?

One of the most interesting questions raised in Cecile Fabre’s Cosmopolitan War concerns war for the sake of resources. Fabre argues that it is sometimes permissible to go to war for the sake of resources that the poor are entitled to. I agree with this, but I think it is true only in very restricted circumstances. I consider a number of arguments in favour of resource wars, showing many of them to fail. The most promising argument, I suggest, is that (...) those who possess resources that have unjustly been secured are complicit in posing future threats by contributing to a market for unjustly secured resources. Whilst this argument has some promise, even it, I suggest, is in no way decisive. (shrink)

When, why, and in what ways, do a person's errors have a bearing on whether they validly consent to another person's conduct?

This essay is a response to the excellent contributions to the double special issue of Law and Philosophy on my book The Ends of Harm. I further defend the Duty View of punishment outlined in the book, responding to criticisms of that view. I also challenge the plausibility of retributivist accounts offered in response to the challenges to that view developed in The Ends of Harm.

This review article discusses Arthur Ripstein’s Kantian account of rights. Our most important rights, Ripstein argues, are determined by our independence rather than our interests. And a significant group of these rights—our rights over external things—is enforceable only in virtue of state membership. I argue that whilst independence is an important source of rights, we cannot exclude interests from an adequate account of rights, and that once this is acknowledged we will conclude that the state is less important than Ripstein (...) believes in rendering our rights enforceable. (shrink)

In this paper I explore Antony Duff’s claim that there are categorical constraints on the scope of the criminal law that are set by its internal standards. I argue against his view that such constraints are categorical, and I suggest that his account of the nature of the criminal law is partial, and narrows the focus of our enquiry into the scope of the criminal law too much. However, I suggest that the project is an important contribution to our understanding (...) of one central element of the criminal law. (shrink)

A widespread view in moral, legal, and political philosophy, as well as in public discourse, is that responsibility makes a difference to the fair allocation or distribution of things that are valuable or disvaluable independently of responsibility. For example, the fairness of punishing a person for wrongdoing varies with her responsibility for wrongdoing; the fairness of requiring a person to pay compensation varies with her responsibility for the harm that she caused; the fairness of one person being worse off than (...) another varies with her responsibility for being worse off; the fairness of inflicting defensive harm on a person to avert a threat varies with her responsibility for causing or posing the threat; and so on. (shrink)

This article defends the right that Palestinians have to return to the territory governed by Israel. However, it does not defend the duty on Israel to permit return. Whether there is such a duty depends on whether the economic, social and security costs override that right. In order to defend the right of return, it is shown both that the current generation of Palestinians retain a significant interest in return, and that insofar as their interests are diminished, their rights are (...) not diminished proportionally. The interests of Jewish Israelis in excluding the Palestinians are then considered. Their rights of self-determination, it is argued, do not powerfully favour excluding the Palestinians. The economic, social and security costs may do so. Overall, I conclude that either the Israel should grant return to the Palestinians or it should properly acknowledge the right of return and respond appropriately through a powerful effort to compensate and resettle them. (shrink)

Most people who think seriously about the criminal law think that there should be less of it. Not only should there be less of it in some areas, there should be less of it overall. Douglas Husak is...

This is a response to the four essays on Wrongs and Crimes.

This article clarifies and further defends the view that the right to be presumed innocent until proven guilty, protected by Article 6(2) of the European Convention of Human Rights has implications for the substantive law. It is shown that a ‘purely procedural’ conception of the presumption of innocence has absurd implications for the nature of the right. Objections to the moderate substantive view defended are considered, including the acceptability of male prohibits offences, the difficulty of ascertaining intentions of legislatures and (...) the proper role of prosecutorial discretion. (shrink)

My response to Shelly Kagan’s book, The Geometry of Desert, is to raise both general and more specific issues. I criticise Kagan’s way of setting up his project. I will suggest many factors other than desert better explain Kagan’s cases. I then examine more particular aspects of the project. I investigate Kagan’s discussion of what he calls the V-shaped skyline. According to Kagan, the V-shaped skyline represents the idea that it is more important that the very vicious and the very (...) virtuous get what they deserve than that the morally neutral get what they deserve. He finds this view attractive. I will suggest that the V-shaped skyline does not represent Kagan’s idea, and that there are independent reasons to reject the V-shaped skyline. Finally, I explore the possibility that Kagan’s account of desert implies that we have reasons not only to alter people’s levels of well-being to fit their levels of virtue, but also reasons to alter people’s levels of virtue to fit their levels of well-being. Kagan’s way of representing desert suggests that we have such reasons. However, I argue that it is implausible that we do. This casts doubt on Kagan’s way of understanding desert. (shrink)

My main aims in this paper are to further clarify and defend the Duty View of punishment, outlined in my book The Ends of Harm, by responding to some objections to it, and by exploring some variations on that view. I briefly lay out some steps in the justification of punishment that I defend more completely in Chapter 12 of The Ends of Harm. I offer some further support for these steps. They justify punishment of an offender for general deterrence (...) reasons if the beneficiary of general deterrence is the victim of the crime. They do so firstly on the basis that offenders incur compensatory duties to victims. I then show that duties incurred through serious wrongdoing are not limited to the duty to provide full compensation. Because offenders incur the relevant duties, and the duties are enforceable, harming them to protect their victims does not wrong them. I then consider whether an offender can be harmed in order to protect people other than the victims of her crime. In this section, I respond to an important challenge to the general idea that we can justify punishment on the basis of duties incurred as a result of wrongdoing, a challenge that I had met only in part in The Ends of Harm. It might be argued that the duties that we incur through serious wrongdoing are owed only to victims of crime. In punishing offenders, in contrast, we aim to protect people in a society more generally, and not just crime victims. A plausible theory of punishment must demonstrate that we are justified in pursuing this aim. Hence, it might be argued, the Duty View fails. I will respond by showing that the duties incurred through wrongdoing are not limited to duties owed to victims, and hence this challenge to the Duty View can be met. (shrink)

This article is a defence of a differentiated offence of rape. A differentiated offence is an offence which can be completed in a number of different ways that cannot be captured in a simple definition. It is argued that such an offence would meet several concerns that have been expressed in the feminist literature about the law of rape. It would assist certainty, it would reduce the extent to which the offence focuses on the conduct of the complainant, it would (...) allow the law to express that violence is central to the offence of rape where violence is present, but it would also allow convictions of rape where there is no violence. The argument is developed through critical engagement with the law of rape as set out in the Sexual Offences Act 2003. The Sexual Offences Act, it is argued, fails adequately to meet the concerns outlined above. (shrink)

I am extremely grateful to Daniel Farrell, Hamish Stewart, Kasper Lippert-Rasmussen and Suzanne Uniacke for their careful, imaginative and probing responses to The Ends of Harm: The Moral Foundations of Criminal Law in this special issue of Criminal Law and Philosophy. It is especially gratifying that philosophers of this calibre, not all of whom have worked directly on the philosophy of punishment and the philosophy of criminal law, have engaged with Ends in this way.One of my ambitions in writing Ends (...) was to connect the philosophy of punishment more directly with a set of broader issues in normative ethics than is common in the philosophy of punishment. I hoped this would encourage others to see the justification of punishment as a small part of a more general normative theory of permissible harm. This special issue has further confirmed to me that this way of developing the philosophy of punishment is fruitful.I will not attempt to respond to all of the arguments i .. (shrink)

In Sparing Civilians, Seth Lazar claims that in war, with rare exceptions, killing noncombatants is worse than killing combatants. This paper raises some doubts about whether this is an important principle – at least, once we understand Lazar’s clarifications. It also suggests that however it is clarified, it seems false. And it suggests a related principle that more plausible. This related principle applies only to those with just aims, and it applies only to intentional killing rather than to all forms (...) of killing. (shrink)

It’s a great honour to respond to these marvellous papers. I wish my interlocutors were worse!

Pre-reflectively, many addicts seem either not responsible, or less responsible, for their addictive conduct, at least if they lack responsibility for their addiction. Moore believes roughly the following. Addicts lack responsibility, when they do, because addicts are unable to control their conduct. They are unable when certain modal conditions are satisfied. Moore offers different modal conditions in different places. This view can be contrasted with another – that addicts lack responsibility when they do because they act on desires that are (...) not well integrated into their motivations. Moore doubts the significance of integration for responsibility. I argue that addicts lack responsibility when, and because, first, addictive craving is not integrated into personhood in a way that directly grounds responsibility; and second, addicts lack the ability to control their addictive conduct to the extent needed for (full) responsibility. I explain how and why modal accounts of self-control need to be refined beyond ways Moore suggests to appropriately test the ability to control oneself, whether or not they are fundamental in explaining responsibility. (shrink)

This Article assesses one kind of argument for an intergenerational right of return in the context of the Israel/palestine conflict. The question is whether descendants of those who were made refugees in the 1948 War can acquire occupancy rights from their parents through inheritance and bequest over territory that they have never lived on. Standard arguments for their inheriting such rights fail for a range of reasons. However, a less familiar argument for inheritance or bequest succeeds—descendants can acquire such rights (...) because their parents have an interest in their being able to live the kind of life that, due to the violation of their rights, they were deprived of. (shrink)

abstract In this response to Antony Duff's paper, I raise doubts about the method of moving from internal to external critique, suggesting that external critique, focusing on more basic principles in moral and political philosophy, has primacy, and that internal critique, if it is done well, will very quickly turn external. I then suggest a different distinction: that between pure and strategic philosophical work, suggesting that more strategic work might be done in legal philosophy to improve the impact of philosophical (...) work on those more concerned with policy. Finally, I suggest that more philosophically focused work on law and democracy has become increasingly important in the light of developments in criminal justice, something missing from Duff's account. (shrink)

abstract In this response to Antony Duff's paper, I raise doubts about the method of moving from internal to external critique, suggesting that external critique, focusing on more basic principles in moral and political philosophy, has primacy, and that internal critique, if it is done well, will very quickly turn external. I then suggest a different distinction: that between pure and strategic philosophical work, suggesting that more strategic work might be done in legal philosophy to improve the impact of philosophical (...) work on those more concerned with policy. Finally, I suggest that more philosophically focused work on law and democracy has become increasingly important in the light of developments in criminal justice, something missing from Duff's account. (shrink)

:The idea of self-ownership has played a prominent role in justifying normative conclusions in moral and political philosophy. I argue that whether or not we are self-owners, there is no such role for it to play. Self-ownership is better thought a conclusion of moral and political arguments rather than their source. I then begin to explore an alternative idea—that the self is morally significant—that provides what those who rely on self-ownership ought to be looking for.

Journal of Political Philosophy, EarlyView.