Contemporary theories of criminalisation address, with varying emphasis, themes concerning the harmfulness and the wrongfulness of the conduct. In his article for the present issue, Antony Duff relies chiefly on notions of wrongfulness as the basis for his proposed criminalisation doctrines; whereas in their 2011 volume on criminalisation, Andrew Simester and Andreas von Hirsch invoke both wrongfulness and harmfulness as prerequisites for prohibiting conduct. The present article assesses the comparative merits of these approaches, and argues in favour of (...) the latter, two-element perspective. In this article, the author puts forward a number of reasons suggesting why the two-element approach is preferable. These reasons include, firstly, an inductive argument—that the kinds of wrongful conduct for which criminalisation seems a plausible response are those that include an element of harm or risk of harm. Secondly, a defining role for the state is one of resource-protection: of safeguarding the means and resources through which citizens can live good lives. Thus the concept of citizens’ living resources—and the related conception of harm—should be made a constitutive and explicit element of criminalisation theory, rather than subsuming resource-protection under a general rubric of wrongfulness. Thirdly, a two-element approach provides reciprocal limiting principles concerning the scope of criminalisation. One can, for example, employ wrongfulness requirements to limit the criminalisation of conduct that has remote harmful consequences; and, conversely, use a harmfulness requirement as means for restricting the criminalisation of wrongful acts. (shrink)

We discuss and respond to the contributions of Tatjana Hörnle, John Kleinig, and John Stanton-Ife, and clarify some aspects of the arguments made in Crimes, Harms, and Wrongs.

. Selective incapacitation reexamined: The national academy of sciences' report on criminal careers and “career criminals”. Criminal Justice Ethics: Vol. 7, No. 1, pp. 19-35.

A. W. Brian Simpson, Cannibalism and the Common Law Chicago: The University of Chicago Press, 1984.

A number of jurisdictions, including England and Wales after their adoption of the 1991 Criminal Justice Act, require that sentences be `proportionate' to the severity of the crime. This book, written by the leading architect of `just deserts' sentencing theory, discusses how sentences may be scaled proportionately to the gravity of the crime. Topics dealt with include how the idea of a penal censure justifies proportionate sentences; how a penalty scale should be `anchored' to reduce overall punishment levels; how non-custodial (...) penalties should be graded and used; and how political pressures impinge on sentencing policies. (shrink)

The principle that a sentence should be proportionate to the seriousness of the offence remains at the centre of penal practice and scholarly debate. This volume explores highly topical aspects of proportionality theory that require examination and further analysis. von Hirsch and Ashworth explore the relevance of the principle of proportionality to the sentencing of young offenders, the possible reasons for departing from the principle when sentencing dangerous offenders, and the application of the principle to socially deprived offenders. They (...) examine the claim that the principle tends to be associated with greater severity in sentencing, and explore the relevance of penance and of restorative justice to proportionality theory. Their examination of arguments and counter-arguments culminates in a re-statement of the main criteria for proportionate sentencing.The authors are well known for their previous writings on proportionality theory, and this volume broadens the theory to deal with important contemporary issues in crime and punishment. (shrink)

Many of the most serious crimes that fall within the justificatory scope of the harm principle do so constitutively. They do so in the sense that the harm that the crime is designed to prevent is a...

Introduction: the emergence of the proportionate sentence -- Sentence proportionality sketched briefly -- Why should the criminal sanction exist? -- Why punish proportionately? -- Ordinal and cardinal proportionality -- Seriousness, severity and the living-standard -- The role of previous convictions -- Proportionate non-custodial sanctions -- A "modified" desert model? -- The politics of the desert model -- Proportionate sentences for juveniles -- Appendix: the desert model's evolution : a brief chronology.

Whereas liberals tend to emphasize harm as the decisive criterion for legitimizing criminalisation, moralists take a qualified notion of wrongfulness as sufficient even when no harm is at hand. This comment takes up Andreas von Hirsch ’s “dual element approach” requiring both harm and wrongfulness as necessary conditions for criminalisation and argues that Joel Feinberg’s account of harming as violation of moral rights is perfectly compatible with it. Subsequently, two issues from the liberalism-moralism debate on criminalisation are examined: (...) The difficulty of how to determine wrongfulness beyond the scope of harming, and the so far disregarded question of whether the democratic legislator is free within the framework of constitution to criminalise whatever conduct he wants to prevent irrespective of philosophical constraints. (shrink)

This article opens with the consequentialist–deontologist debate, with the former concerned about the relevance of punitive measures against their crime reducing potentials, while the latter highlights punishment as censure of wrongful acts and the proportion of the punishment to the degree of crime. The article briefly discusses the empirical research on the impact of penal sanctions and focuses on three main kinds of empirical research into possible general deterrent effects—namely, association studies, quasi-experimental studies, and contextual and perceptual studies. It addresses (...) the methodological issues involved in deterrence research and summarizes the results precisely. This article also discusses reductivism in the view of the possibility that penal sanctions could influence the offender's will. The results suggest that crime preventive aims can justify sentencing policies only to a limited degree, at least for the foreseeable future. (shrink)

The decline of the rehabilitative ethos in sentencing theory in the post_1960's is a story that has been told often , and need not be rehearsed here. Penal treatment programs, once tested for their effectiveness, showed scant success _ or at most, succeeded only in limited categories of cases. Doubts grew also about the fairness of making the severity of a person's sentence depend upon his responsiveness to treatment. As penal rehabilitation diminished in influence, the key question for penologists and (...) reformers became: what conception of sentencing should follow it? My article, as well as Michael Tonry's and John Donahue's in the present volume, is devoted to this question, of the choice of sentencing rationale.I will focus, particularly, on a sentencing theory that became influential in the late 1970's and 1980's in this country and western Europe , and continues to have considerable influence today : namely, the proportionalist or 'desert' model for sentencing. I shall address briefly what this theory's main tenets are and how it differs from traditional retributivism; what has made it attractive to liberal criminologists and penal reformers during the last three decades; and whether and to what degree it has continued value and usefulness for the future. (shrink)

This paper explores the Offence Principle. It discusses whether two constraints, additional to the criteria stated in conventional analysis, ought to be met before the Offense Principle can be satisfied: (i) that offensive conduct must be a wrong, and (ii) that the conduct must also lead to harm. The nature of the Harm Principle, and its relationship to the Offense Principle, are also considered. The paper suggests that, even if all cases in which offense should be criminalized also involve harm, (...) nonetheless there may be good reasons to retain a separate Offense Principle. (shrink)

The decline of the rehabilitative ethos in sentencing theory in the post_1960's is a story that has been told often, and need not be rehearsed here. Penal treatment programs, once tested for their effectiveness, showed scant success _ or at most, succeeded only in limited categories of cases. Doubts grew also about the fairness of making the severity of a person's sentence depend upon his responsiveness to treatment. As penal rehabilitation diminished in influence, the key question for penologists and reformers (...) became: what conception of sentencing should follow it? My article, as well as Michael Tonry's and John Donahue's in the present volume, is devoted to this question, of the choice of sentencing rationale.I will focus, particularly, on a sentencing theory that became influential in the late 1970's and 1980's in this country and western Europe, and continues to have considerable influence today : namely, the proportionalist or 'desert' model for sentencing. I shall address briefly what this theory's main tenets are and how it differs from traditional retributivism; what has made it attractive to liberal criminologists and penal reformers during the last three decades; and whether and to what degree it has continued value and usefulness for the future. (shrink)

Andrew Simester and Andreas von Hirsch’s Crimes, Harms, and Wrongs: On the Principles of Criminalisation (Simester and von Hirsch 2011) is an important contribution to the philosophical debate over the nature and ethical limits of criminalisation. As they note in their reply in this symposium, one of the novel aspects of their account is that they do not advance one “unified, grand theory”. Rather, they analyse each ground of criminal prohibition—wrongfulness, harm-based, offense, and paternalistic prohibitions aimed at (...) preventing self-harm—so as to develop guiding principles for their use (or, in the case of paternalism, the absence of an independent principle that would underwrite its use).The result is a rich set of arguments that advance a number of debates across the field of criminalisation.However, that is not all: the participants share the view that, as Tatjana Hörnle puts it, “any theory of criminalization presupposes assumptions about the functions of the criminal law. The q. (shrink)

In this article, I comment on Simester and von Hirsch’s theory of criminalization and discuss general principles of criminalization. After some brief comments on punishment theories and the role of moral wrongdoing, I examine main lines of contemporary criminalization theories which tend to focus on the issues of harm, offense, paternalism and side-constraints. One of the points of disagreement with Simester and von Hirsch concerns the role of the harm principle. I rely on a straightforward normative concept of (...) “rights of others,” not in the sense of rights granted in positive law but in the sense of rights which are to be justified in political philosophy. With a rights-centered rather than a harm-centered approach, a prima facie reason for criminalization is the violation of others’ rights. It is unnecessary to develop a separate category of “offense to others,” and paternalistic interventions can be criticized straightforwardly because rights can be waived. (shrink)

Information technology (IT) is continuously making astounding progress in technical efficiency. The time, space, material and energy needed to provide a unit of IT service have decreased by three orders of magnitude since the first personal computer (PC) was sold. However, it seems difficult for society to translate IT’s efficiency progress into progress in terms of individual, organizational or socio-economic goals. In particular it seems to be difficult for individuals to work more efficiently, for organizations to be more productive and (...) for the socio-economic system to be more sustainable by using increasingly efficient IT. This article provides empirical evidence and potential explanations for this problem. Many counterproductive effects of IT can be explained economically by rebound effects. Beyond that, we conclude that the technological determinism adopted by decision-makers is the main obstacle in translating IT’s progress into non-technical goals. (shrink)

What does it mean to consider the world of AI through a Christian lens? Rapid developments in AI continue to reshape society, raising new ethical questions and challenging our understanding of the human person. Encountering Artificial Intelligence draws on Pope Francis’ discussion of a culture of encounter and broader themes in Catholic social thought in order to examine how current AI applications affect human relationships in various social spheres and offers concrete recommendations for better implementation. The document also explores questions (...) regarding personhood, consciousness, and the kinds of relationships humans might have with even the most advanced AI. Through these discussions, this book investigates the theoretical and practical challenges to interpersonal encounter raised by the age of AI. (AI Research Group for the Centre for Digital Culture of the Dicastery of Culture and Education of the Holy See). (shrink)

Das Altern ist nicht nur eine biologische, sondern auch eine kulturelle Tatsache. Als Objekt der Verhandlungen zwischen Wissensdiskursen erscheint Alter als ein ebenso heterogenes wie problematisches Phanomen, das von Werturteilen und Weltanschauungen bestimmt wird. Des Weiteren sind Alter und Medizin in der offentlichen Meinung moderner Gesellschaften eng miteinander verbunden. Das interdisziplinare Forschungsprojekt "Kulturelle Variationen und Reprasentationen des Alters" geht von einem erweiterten, die geistes-, sozial- und medizinwissenschaftlichen Diskurse integrierenden Konzept von Alterskulturen und Potentialen des Alters aus. Dies bedeutet, Alter als (...) Gegenstand des Wissens und als Konzept zu begreifen. Alterskonzepte, das heisst Vorstellungen, Wertungen und, Bilder des Alters, sind Deutungsmuster fur elementare Bedurfnisse an der Schnittstelle von individuellem und kollektivem Leben. Mit Beitragen von David Blane und Gopalakrishnan Netuveli, Johannes Siegrist und Morten Wahrendorf, Peter Rusterholz, Anouk Janssen, Hiltrud Westermann-Angerhausen, Stefanie Knoll, Jean-Claude Schmitt, Gerd Gockenjan, Giovanna Pinna, Hans-Georg Pott, Monika Gomille, Miriam Seidler, Pat Thane, Simone Moses, Heiner Fangerau und Jorg Vogele, Anja Schonlau, Thomas Kupper". (shrink)

Emerging research has highlighted the utility of measuring individual differences in decision-making competence (DMC), showing that consistently following normatively rational principles is associated with positive psychosocial and health behaviors. From another level of analysis, functional theories of personality suggest that broad trait dimensions represent variation in underlying self-regulatory systems, providing a mechanistic account for robust associations between traits and similar life outcomes. Yet, the degree to which broad dispositional personality dimensions predict global tendencies to respond rationally is less understood. In (...) a large online community sample (N = 804), we tested the associations between HEXACO personality dimensions, a 6-factor structural trait model, and a subset of DMC indicators (Applying Decision Rules, Resistance to Framing, Recognizing Social Norms, and Consistency in Risk Perception). Additionally, we examined gender differences across the DMC, first considering the potential for measurement non-invariance across groups for the DMC. We observed partial measurement invariance between men and women; only the Applying Decision Rules scale showed evidence of differential functioning across groups. Controlling for these differences, analyses revealed that higher Conscientiousness, Honesty/Humility, and Openness were associated with higher DMC scores. In contrast, Emotionality and Extraversion demonstrated gender-specific associations. Speci... (shrink)

The essay departs from a detailed discussion of Jakobson’s description of the »poetic function.« It comes to the conclusion that the distinctive feature of poetic language, defined by Jakobson as the production of paradigmatic similarity, cannot be understood as a result of the projection of the paradigmatic axis of language onto its syntagmatic axis. Furthermore, the semantic effect of these similarities does not consist exclusively in a production of ambivalence; frequently, they produce coherence, as can be shown with reference to (...) examples of metaphors, metonymies and allegories. In a second step, the essay turns to a detailed interpretation of the 8th sonnet of Petrarch’s Canzoniere, which examines its intertextual relations to other son- nets of this cycle as well as those to scholastic theology and Platonic philosophy. This interpretation further develops the idea that poetic language produces coherence; for, precisely those lines that at first seem incomprehensible can be understood as implicit propositions and coherencecreating statements. In its concluding section, the paper characterizes the implicit production of coherence as the specific feature of poetic language and discusses the necessity of a hermeneutics of literary texts. (shrink)

We discuss and respond to the contributions of Tatjana Hörnle, John Kleinig, and John Stanton-Ife, and clarify some aspects of the arguments made in Crimes, Harms, and Wrongs.

Two studies document that people are more willing to express emotions that reveal vulnerabilities to partners when they perceive those partners to be more communally responsive to them. In Study 1, participants rated the communal strength they thought various partners felt toward them and their own willingness to express happiness, sadness and anxiety to each partner. Individuals who generally perceive high communal strength from their partners were also generally most willing to express emotion to partners. Independently, participants were more willing (...) to express emotion to particular partners whom they perceived felt more communal strength toward them. In Study 2, members of romantic couples independently reported their own felt communal strength toward one another, perceptions of their partners’ felt communal strength toward them, and willingness to express emotions to each other. The communal strength partners reported feeling toward the participants predicted the participants’ willingness to express emotion to those partners. This link was mediated by participants’ perceptions of the partner’s communal strength toward them which, itself, was a joint function of accurate perceptions of the communal strength partners had reported feeling toward them and projections of their own felt communal strength for their partners onto those partners. (shrink)

The article examines the record of compliance with the UN Committee against Torture’s decisions in individual complaints cases. Theoretically, I expect that compliance will be the outcome of a combination of normative and rationalist factors: States committed to human rights protection will comply even in the absence of enforcement but only as long as compliance costs remain relatively low. Using a data set covering all adverse decisions issued until 2018 and information on their compliance status, I employ fuzzy-set qualitative comparative (...) analysis to identify necessary and sufficient conditions for the outcomes of compliance and noncompliance. The analysis reveals that the conditions tested—liberal democracy, nonuse of political terror, violation type, and strong civil society—are in part individually (near-)necessary and jointly sufficient for compliance, while the presence of their complements is consistent with noncompliance. The Committee against Torture thus appears to be able to elicit (some) state compliance with its decisions, if mostly only with respect to certain kinds of states and select types of violations. (shrink)